Classification of Offences Under the Code of Criminal Procedure, 1973

Classification of Offences Under the Code of Criminal Procedure, 1973 | Overview

• Introduction
• Classes of Offences
• Cognizable and non-cognizable Offences
• Bailable and Non-bailable Offences
• The distinction between Cognizable and non-cognizable Offences

Introduction

The article discusses the classification Of Offences Under The Code Of Criminal Procedure, 1973. The Code of Criminal Procedure is the counterpart of its substantive legal enactment, the Indian Penal Code, 1860. The Cr.P.C provides for trial of acts mentioned as offences under the IPC. But, however, to ensure an expeditious and fair trial, there is a categorical classification of offences under the Cr.P.C.

One principal object of criminal law is to protect society by punishing offenders. However, justice and fair play require that no one is punished without a fair trial. Therefore, it becomes absolutely necessary that every person accused of the crime is brought before the court for trial and determination of his guilt or innocence[1]. This duty is vested upon the police officers. The police department is a functionary under the Code of Criminal Procedure, 1973 responsible for all the pre-trial procedures including, arrest and production of the accused of trial.

The Police Act, 1861 provides that “it shall be the duty of every police officer to collect and communicate public peace; to prevent the commission of offences and public nuisance…”[1]

The Code, however, does not contemplate the use of the police in respect of an investigation into each and every offence under the Indian Penal Code, 1860 or any other law. Further, the force used by police “during and after arrest also depends upon the nature of the offence committed” [3]. Taking these into consideration, the Code has divided the offences under IPC and all other penal laws into two classes comprising of two categories each.

Classes of Offences

1. Cognizable and non-cognizable Offences

The Criminal Procedure Code provides for two categories of offences – cognizable and non-cognizable. Clauses (c) and (l) of Section 2 of the Code defines cognizable and non-cognizable offences respectively as follows:

Section 2(c): “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

Section 2(l): “no- cognizable offence” means an offence for which, and “no- cognizable case” means a case in which, a police officer has no authority to arrest without a warrant[4].

As indicated by the above definition, cognizable offences are those where the police can suo motu take action without the need for any authorized permission from the Magistrate. These offences are serious in nature and the society cannot afford wasting time on legal formalities and to allow the offender to conceal evidence or worse; abscond.

With respect to the meaning of cognizable offence under the Code, the Calcutta High Court made certain observations in State of West Bengal v. Joginder Mallik. The court held that where the alleged offence is not cognizable according to the First Schedule to the Code or if it has not been made cognizable by the Act creating the offence, it will not be considered as cognizable simply because the police was empowered to arrest the person for commission of offence without a warrant[5].

On the contrary, in case of a non-cognizable offence, the police do not have the power or the authority to arrest a person without a warrant nor can the police officer initiate the investigation without a specific order of the Magistrate.

In all cases of non-cognizable offence, the person reporting the offence is referred to the Magistrate and a complaint has to be filed before the Magistrate under Section 190 of the Cr.P.C. Besides certain exceptions, “the non-cognizable offences are considered more in the nature of private wrongs and therefore, the collection of evidence and the prosecution of the offender are initially left to the initiatives and efforts of private citizens”[6]. However, if a Judicial Magistrate “considers it desirable that a non-cognizable case should be investigated by the police, he can order the police to do so”[7].

2. Bailable and Non-bailable Offences

The Code has further classified all offences under the IPC as bailable and non-bailable offences. According to Section 2(a) of the Cr.P.C:

Section 2(a): “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non- bailable offence” means any other offence.

The definition of bailable offence and the non-bailable offence does not say a lot about its meaning or nature[8]. The code has not provided any parameters to determine which offence should be bailable and which should not be. However, it has been classified in the Frist Schedule to the Cr.P.C and it has to be followed without any discretion or fail. If an act is made an offence in some other law and it has not been classified as bailable or non-bailable, usually the graveness of the offence is looked into.

In general scenario, an offence which is punishable with an incarceration period of three years or less is considered to be less heinous and hence, bailable while contrary to it, an offence where the offender can be incarcerated for more than three years is usually non-bailable[9].

However, the Supreme Court criticized this rule in Talab Haji Hussain v. Madhukar Purshottam[10]. The court observed that if the above rule had been true, it may not be easy to explain why offences under Sections 477, 477A, 475 and 506 of the IPC should be made bailable while offence under Section 379 should be non-bailable. It may be noted that offences under Sections 475, 477 and 477A are all punishable with an incarceration period which may extend to seven years but, however, they are made bailable under the First Schedule[11].

In case of offences under laws other than the IPC, this broad rule is accepted because it is not expedient to list all the offences under all the laws for the time being in force and keep changing the First Schedule, whenever a new penal law comes. However, “this general rule can be suitably modified according to the specific needs by making a special provision in law”[12].

The basic difference and meaning of the two offences are that “if a person accused of a bailable offence is arrested or detained without warrant, he has a right to be released on bail. But if the offence is non-bailable, it does not remain a matter of right but only a privilege granted at the discretion of the court”[13]. Bail is an amount of money furnished by the arrested person with or without any person(s) as surety to ensure his appearance before the court when required.

The distinction between Cognizable and non-cognizable Offences

The Code has not provided any determinant to decide whether an offence is a cognizable or non-cognizable offence. Therefore, the following points are important considerations that determine the category of the offence.

1. Precisely, cognizable offences are those which under ordinary circumstances seem to be more dangerous, grave and a serious threat to the society[14]. The seriousness of the offence is determined by the punishment given for the offence. Usually, if “an offence is punishable with imprisonment for a term of three years or more, it is considered to be serious”[15]. In heinous crimes such as murder, dacoity, dacoity with murder, sexual violence etc. prompt police action for the arrest of the offender and investigation into the case is necessary for successful prosecution and thus, therefore, these offences are treated as cognizable.
2. Offences which are in the nature of private wrongs, though serious in nature, are considered to be non-cognizable. For instance, bigamy, adultery etc. are all punishable with imprisonment for more than five years’ term but are made non-cognizable. The reasoning is that making these offences cognizable might involve too much risk of police intervention into the private family of the individuals.
3. Some offences under Chapter XI of IPC relating to giving of false evidence and offences against justice are considered non-cognizable even when the punishment makes them serious offences. This is to prevent police intervention during conduction of court proceedings.

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[1] K.N. Chandrashekaran Pillai, R.V. Kelkar’s Criminal Procedure 31 (6^th ed. 2018).

[2] §23, Police Act, 1861.

[3] Ratanlal & Dhirajlal, Commentary on the Code of Criminal Procedure 23 (18^th ed. 2006).

[4] §2, Cr.P.C, 1973.

[5] State of West Bengal v. Joginder Mallik, 1979 Cri. L.J 539 (Cal).

[6] Pillai, supra note 1 at 33.

[7] §155 (3), Cr.P.C, 1973.

[8] Pillai, supra note 1 at 291.

[9] Ibid.

[10] Talab Haji Hussain v. Madhukar Purshottam, AIR 1958 SC 376.

[11] Ibid.

[12] Ratanlal, supra note 2 at 24.

[13] Pillai, supra note 1 at 291.

[14] Ibid. at 34 – 35.

[15] Ibid.

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