I think I have tried to deal with most queries and doubts about the FIR from the point of view of an ordinary person and a police officer too. Addressing each aspect and all intricacies is beyond the scope of the current series. However, before turning to the aspect of “Conduct of Investigation”, it would be better to have a look at ‘non-cognisable offences’.
Recapitulate what I have mentioned earlier, the CrPC defines non-cognisable offences:
"non-cognisable offence" means an offence for which, and "non-cognisable case" means a case in which, a police officer has no authority to arrest without warrant;
This, however, is a very simplistic definition and just lays down by exclusion and elimination, thepowers which the police does not have in certain cases. As a matter of common sense, the non-cognisable offences are the ones where the authority of the police to act has been curtailed. It also means that this is a category of offences where ‘arrest can wait’ and the immediate intervention of the police officers by way of arrest can be delayed. These, are, by that measure, the less serious matters where immediate damage to life of property would not be a possibility.
Cognisability in Changing Times:
Increasingly, with the world becoming more and more inter-linked and interdependent, smaller crimes can have tsunami like world-wide implications and bring down lives and property and economies to a crashing halt. The recent Covid-19 crisis (although no criminality is being associated with it yet), or the internet malwares – viruses, ransomware and hacking, etc. are relatively cheap and cost effective tools but can create havoc around the world. These can potentially bring entire countries to a screeching halt in a matter of a few hours. Therefore, the definition of crimes and the seriousness of their implications has undergone drastic changes.
The 9/11 incidents where terrorists hit the Twin Towers in New York and the 26/11 Mumbai attack (where the perpetrators travelled across the seas from Pakistan) are also grim but timely reminders that an ‘empowered police’ is better than a ‘dis-empowered’ one – dis-empowered by law from not intervening under certain crimes. The definition of non-cognisable and cognisable and the distinction between the two is sometimes too vague and leaves a lot to the discretion of the police officials.This discretion, is arbitrarily exercised and registration of crimes is denied – either by saying that the crimes are non-cognisable or ‘civil matters’ or no criminality is attracted.
Police Discretion to Register Crimes:
This discretion, besides being abused is also responsible for non-registration of a colossal number of incidents being reported to police – incidents which the police does not or cannot attend or where the informants/complainants are driven away by the police. Some of these perceived small or insignificant incidents are the ones which later erupt like a volcano – the Hathras case and the Kuldip Singh Sengar case, and many more. Once the smaller crimes/infarctions are not documented or investigated (for whatever reasons), the criminal or the wrong-doer gets emboldened and takes the law and the strong arm of law for granted at first and for granted, in due course – a cycle which results in heinous crimes being committed or overlooked.
The distinction between the cognisable and non-cognisable offences is a ‘Commonwealth concept’ introduced by the British – but still remains on the statute books of most commonwealth nations especially India, Pakistan, Bangladesh and Sri Lanka in particular. Even countries like Nigeria have provisions which define cases where police may not arrest and investigate without orders/directions from the courts.
The Nigerian Criminal Law provides-
“Provided that if the officer is satisfied that no public interest will be served by a prosecution he may refuse to accept the information and notify in writing the informant of his right to complain to a court ….”
Criteria for Cognisability:
Initial inquiries with foreign police officials indicate that under-reporting and under-registration of criminal cases is a worldwide issue. In Hongkong too, only about 38% of the cases are reported. In United Kingdom, on the other hand, the criteria of police taking action on its own (equivalent to cognisability)is where the offences carry a minimum punishment of 5-years and above. This is a slightly different concept than our own where cognisability is individually indicated for all offences. This is a more eliminative criteria but also a more inclusive one – registration of FIRs for cases where punishment is more than 5-years is mandatory. Moreover, in the United Kingdom, the non-registration of FIRs or their equivalent is a ‘grave service misconduct’ by the police officials. India too, has slowly veered towards this direction but not for all offences but only a certain category of offences. There is, however, a growing pressure from civil liberty activists and jurists to make offences punishable with imprisonments less than 7 years bailable.
Procedure in Non-Cognisable Offences:
If there is a sequence of events or a crime where some offences are non-cognisable but even a single one is cognisable, the police is within its rights to investigate the entire sequence as a cognisable case and commence investigations.
However, the CrPC lays down specific procedure for dealing with non-cognisable offences. The Section 155, lays down:
Section 155 – Information as to non-cognisable cases and investigation of such cases -
When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognisable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the informant to the Magistrate.
No police officer shall investigate a non-cognisable case without the order of a Magistrate having power to try such case or commit the case for trial.
Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
Where a case relates to two or more offences of which at least one is cognisable, the case shall be deemed to be a cognisable case, notwithstanding that the other offences are non-cognisable.
Thus, briefly, the procedure for non-cognisable cases is as below:
(i) The O/C shall receiving the information shall not refuse to register the report;
(ii) The O/C shall enter/cause the substance of the information in the General Diary or Station Diary i.e., make a GD Entry;
(iii) The O/C shall, after making the GD Entry, refer the informant to the (judicial) Magistrate for further action (taking cognisance);
(iv) The O/C shall, after making the GD Entry, inform the informant in writing, that he can approach the (Judicial) Magistrate. Prudence dictates that while referring the complainant to the (Judicial) Magistrate, the O/C should also inform the informant about the concerned (judicial) magistrate (having territorial jurisdiction) over the matter, to facilitate the complainant;
(v) Usually, only a certified copy of the GD Entry is handed over to the complainant/informant. However, it would be prudent to also assign reasons while declining to register an FIR and mention that the crimes/acts complained of are not a cognisable offence and hence the informant has been referred to the magistrate. In practice, this is not done – reasons are not assigned, in writing.
(vi) In the absence of reasons being assigned, the complainants – most of whom are legally illiterate or unaware, do not know how to get their grievances redressed;
(vii) Once the complainant/informant has received the GDE copy, he canapproach the (judicial) Magistrate concerned for taking cognisance and then directing the police to investigate;
(viii) The (judicial) Magistrate can take cognizance of the complainant and then direct the police to investigate the matter;
(ix) Once the judicial magistrate has asked the police to investigate the matter, the police enjoys all the powers to investigate as in other cases;
(x) However, when a judicial Magistrate orders the police to investigate a non-cognisable case, the police does not have power to arrest the accused.The arrest can only be done after the magistrate has issued a warrant of arrest;
In Nagaland, there is a tendency among some police officers to register non-FIR cases. These do not have the backing of law per se.
If the cases are non-FIR, they could either be non-cognisable cases (where police cannot act without the orders from magistrate) or they can be disturbances to public order and tranquillity (Chapter VIII, X and XI of the CrPC). However, the latter are dealt with differently by executive magistrates and not the judicial magistrates.
The Section 190 of CrPC empowers judicial magistrates to take cognisance of cases:
190. Cognisance of offences by Magistrates
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub -section (2), may take cognisance of any offence (upon) —
(a) receiving a complaint of facts which constitute such offence;
(b) a police report of such facts;
(c) information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Thus, when an individual either after a report to the police (with a copy of GDE) or otherwise, makes a complaint to the area judicial magistrate, he may take cognisance of the offence and order the police to investigate the matter.
Either the Chief Judicial Magistrate or a Judicial Magistrate Second Class (JMFC), especially empowered by the CJM, may take cognisance and order the police to investigate non-cognisable cases.
Rupin Sharma
rupinsharma@gmail.com