 Good evening friends. In the knowledge sharing by Justice Veeram Kumar, a former judge, Kerala High Court. We take another short topic, which would be divided into six parts of short, short questions. Whether a non-cognizable offense, whether a non-cognizable case can become a deemed cognizable case. This is the main title and in different questions, sir will be sharing his knowledge. And as usual, despite the fact that he's busy with his book as well as writing articles for live law and his passion to pay back to the society, it's what drives us to keep on requesting Justice Veeram Kumar for sharing his knowledge. And the most fascinating part is that we receive text messages as well as on the YouTube, whenever you post that Justice Veeram Kumar will be sharing his knowledge, you will actually look upon it. Thank you sir and over to you. Thank you Mr. Vigas. Good evening friends. Today's topic is a very, very, title is very strange. Can a non-cognizable case become a deemed cognizable case? Now most of you, all of you or most of you may be familiar with cognizable offense and a non-cognizable offense. Now for those who are not familiar, a cognizable offense by virtue of section 2c of the Code of Criminal Procedure, CRPC for short, is an offense in which the police officer can arrest the offender without a warrant. Whereas a non-cognizable offense by virtue of section 2LCRPC is a case in which a police officer has no authority to arrest the offender without a warrant. Whereas in the case of a cognizable offense, police officer can straight away arrest him without a warrant. This is the main difference between cognizable offense and non-cognizable offense. Now what is a cognizable case? We are on the question of cognizable case. See section 2c, right away section 155 subsection 4, 155-4, CRPC shows that a cognizable case is a case in, is a case which relates to two or more offences of which at least one is a cognizable offense even though all the other offences are non-cognizable. So that is a cognizable case. This is section 2c, right away section 155 subsection 4. Therefore supposing there are five non-cognizable offences and if there is one cognizable offense where the police officer can arrest without a warrant, then it becomes a cognizable case. Now in section 155, clause 4 creates a legal fiction whereby the presence of a solitary cognizable offense transforms the case consisting of only non-cognizable offences into a cognizable case so that the police officer that is the officer in charge of a police station which we call SHO, station house officer so that the SHO can register an FIR and commence investigation without insisting on an order of the magistrate whereas if it is a non-cognizable offense then police officer has no right to register an FIR or commence investigation without the order of a magistrate under section 155 clause 2 subsection 2 of section 155 CRPC. So this is the distinction between cognizable offense and cognizable case. So if all the offences are non-cognizable, police officer is helpless, he cannot register an FIR. But if there is one cognizable offense involved in that case, then it becomes a cognizable, one cognizable offense is there, then it becomes a cognizable case because the presence of one cognizable offense makes it a cognizable case. If it is a cognizable case, police officer can definitely register an FIR and commence investigation. Now what is a non-cognizable case? A non-cognizable case by virtue of section 2L CRPC, right away section 155 again clause 4 CRPC is a non-means a case in which all the offences are non-cognizable offences. There is no cognizable offense at all, therefore the police officer cannot register an FIR, police officer cannot arrest the offender without a warrant, he cannot arrest also, unlike cognizable offense and cognizable case. Now how to find out whether the offence alleged in the information given to the SHO, is a cognizable or non-cognizable offense, how do you find out? Supposing some particular offence is alleged in the FIR, question of information report, how to find out whether that offence is a non-cognizable offense or a non-cognizable offense. Now towards the end of the CRPC code of criminal procedure, there is the first schedule, first schedule to CRPC contains two parts, part 1 and part 2. Part 1 deals with all the offences under the Indian Penal Code, IPC Foursaur, and part 2 deals with offences under other laws, that is under laws which are other than Indian Penal Code. Now part 1 enumerates all the offences in the Indian Penal Code and column 1, column 1 of that table, column 1 of the table in part 1 shows whether the offence, every offence is given, described. Column 4 of the table shows whether the offences are cognizable or non-cognizable. It is already predetermined by the framers of the code. Therefore, if you look at column 4 of the first schedule, part 1, you will find out which offence under the Indian Penal Code is cognizable and which offence is non-cognizable. If it is a cognizable, police officer can straight away arrest him without a warrant. If it is a non-cognizable, police officer cannot arrest him without a warrant. Now, the provisions for issuing warrant and execution of warrant, etc., are contained in sections 70 to 81 of the CRPCs. Now part 2 of the first schedule, part 2 deals with offences under laws other than Indian Penal Code. There is a notion of plethora of statutes whereby there are offences, where under there are offences. So it is not possible for the framers of the code to catalogue, to enumerate all the laws other than the Indian Penal Code in the schedule. Therefore, a different yardstick has been adopted by part 2. In part 2, if it is an offence under any other law, that is other than the Indian Penal Code, then if the offence is punishable with 3 years and above, if the offence is punishable with 3 years and above, then it is treated as cognizance. If under the special law, if under any law other than the IPC, the offence is punishable with imprisonment for 3 years and above, it is considered to be cognizance. Police officer can arrest without a warrant, can register an FIR. Whereas if the offence is punishable, offence under the other law is punishable with imprisonment for less than 3 years. It is non-cognizance. Police officer cannot register an FIR. Police officer cannot arrest the offender without a warrant. He will have to obtain the permission or order of the jurisdiction to register it under section 155 to CRPC. Now, next question is almost, is already I have answered. In which category of cases can an officer in charge of a police station that is SHO register an FIR? Section 154 of CRPC shows that an SHO can register an FIR only if the information, that is first information report, only if the information received by him relates to a cognizable case. Cognizable case we have seen. All the offences may be non-cognizable except one. There is one cognizable offence, so it is a cognizable case. He can register an FIR, only he can entertain the complaint only if it contains at least one cognizable offence. In which case the information, if the information given to the SHO contains at least one cognizable offence, then he can register an FIR. That information given to the officer in charge of a police station is called the first information report. And once the SHO receives information regarding the commission of a cognizable offence, he has to register the FIR in an FIR book or FIR register. There is an FIR book or otherwise called FIR register maintained in every police station. Now once he receives information regarding the commission of a cognizable offence where the officer can arrest the offender, he has to register the FIR in an FIR book, enter the FIR in an FIR book or an FIR register. If that register should contain 200 pages with proper pagination, etc. The SHO should also enter the substance, the synopsis, substance of the FIR in the general diary. General diary is also called station diary or daily diary. Station diary or general diary or daily diary is not a diary prescribed by the Code of Criminal Procedure. It is a diary prescribed under section 44 of the Police Act 1861, Central Act. It is a diary prescribed for every police station under section 44 of the Police Act 1861. That is the Central Act. All these information you will get in paragraphs 48, 53, 54 and 56 of Lalitha Kumari, Constitution of Benjadism. Lalitha Kumari versus Government of UP. AIR 2014, Supreme Court 187. AIR 2014, Supreme Court 187. Constitution of Benjadism consisting of five judges. The Chief Justice P. Sadashivam is himself the author of the judgment. The other judges were Dr. B. S. Chauhan, Renjana Prakash Desai, Renjana Gokoi and S. A. Bobade. But if the information received by the SHO relates only to a non-cognizable case, he has no authority to register an FIR or commence the investigation, except with the orders of the Jurisdictional Magistrate under section 155, subsection 2, CRPC. So, for this, there is a decision also. H. N. Rishbud, H. N. Rishbud versus State of Delhi. AIR 1955, Supreme Court 196, corresponding to 1955, Criminal Law Journal 526, three judges. M. K. Mukherjee, Vivian Bose and Justice Jagannadadas. Jagannadadas is the author of the judgment. Now, we come to the fifth question. When can it be said that the SHO has registered a crime? We very often hear news that an information was received by the SHO, which is called FIR, First Information Report. SHO on receipt of the information did not register an FIR, did not register the FIR and therefore the party had to approach the district superintendent of police or to magistrate etc. Now, after this Nadeethagumari, constituted by the decision, once an information mentioning about the commission of a cognizable offense is given to the officer in charge of a police station, SHO, is mandatorily bound to register the FIR. He has no other option. He has no freedom to say that, no, no, I will not register the FIR. He has no such freedom. He has to mandatorily, necessarily, compulsorily register the FIR. That is what the constitutive bench said, except in certain category of cases where the constitutive bench said that if there are certain categories, for example, if the information does not reveal, does not disclose a cognizable offense, there may be a cognizable offense actually committed, but the information given to the police officer, he does not disclose the commission of a cognizable offense. That is one category of cases where he can conduct a discrete preliminary inquiry to find out whether there is a cognizable offense committed, in which case he will register the FIR. He has to register the FIR. Another category of cases is where the dispute is a matrimonial offense or family dispute, matrimonial or family dispute. This is a category, this is not there in the CRPC. This is a judge-made law or I would say judge-made conundrum. Unnecessary confusion has been created by judges. It was not necessary. The CRPC does not contemplate any preliminary inquiry. In fact, the inquiry is not a phenomenon. It is not a proceeding given to the police at all. Inquiry is a process conducted by a magistrate. Police officer has no power of inquiry. This is a judge-made law. Then the third category is whether the offense is a commercial offense. If it is a commercial offense, Supreme Court said he can conduct a preliminary inquiry and try to find out whether there is a cognizable offense disclosed. Then fourth category is a medical negligence cases. Medical negligence cases also. It may be this way or that way. There may be really negligence on the part of the medical doctor. But there can be cases where there may not be real negligence. It may be an error of judgment. He might have given the proper medication, proper treatment. But there was a bona fide error of judgment in good faith or the particular patient might have reacted differently for a particular medicine even after giving tested dose. All those contingencies can happen. The medical negligence cases also. The police officer can conduct a preliminary inquiry. Then in corruption cases, cases falling under the Provincial Corruption Act 1988, in corruption cases also of the SHO in a case where the information does not reveal the cognizable offense. But all offenses under the PC Act, Provincial Corruption Act are cognizable offense. But if the information given does not reveal the cognizable offense, he can conduct a preliminary inquiry. The last is 60 where there is unexplained delay of more than 3 months in informing the police in lodging, in reporting the offense. In reporting the offense if there is unexplained delay of more than 3 months, that's a case where the police officer can conduct a preliminary inquiry. Barring that, once information regarding the commission of a cognizable offense is disclosed in the information given to the officer in charge of the police station, he has no option, no freedom, he has to mandatorily register an FIR. Now what exactly is the process of registering an FIR? When the SHO decides to register an FIR, he has to enter the information. He has to first information report, he has to enter the first information report in the FIR book or FIR register. This process of entering the FIR in the FIR register or FIR book is called registering the FIR. This is the process of registration of a crime. When the SHO, stationals officer officer in charge of the police station, on receipt of an information disclosing the commission of a cognizable offense, register the FIR either in the FIR book which is also called a FIR register. That process of entering in the FIR register is called registering of a crime, registration of a crime or registration of a case. This has been explained by Ladiza Kumari, paragraph 30 of Ladiza Kumari AIR 2014 Supreme Court, page 7. Now we come to the last question for the day. If the SHO cannot register an FIR and commands investigation in respect to a non-cognizable case, what is the procedure to be followed? If the information received by the SHO relates to a non-cognizable case, that is a case involving non-cognizable offense only. Now see, the police officer may receive so many information, first information, regarding offenses. Now supposing a particular information received by the SHO alleges only the commission of non-cognizable offenses. How to find out? Column 4 of first schedule. Column 4 of the table in first schedule to find out whether offense is cognizable or non-cognizable. Supposing he finds out, the SHO finds out that all the offenses mentioned in the information are non-cognizable offenses. He cannot register an FIR. So what exactly should he do? You get the answer in section 155 subsection 1, PRPC. He has to first enter the substance of the information, synopsis of the information in the general diary or station diary or daily diary, that is section 155-1 and also paragraph 48 of Laddada Kumari, Laddada Kumari's case, area 2014, Supreme Court 187. Then as enjoined by section 155 subsection 1, the SHO should refer the informant to the jurisdictional magistrate because the SHO cannot register an FIR. He can register an FIR only if the jurisdictional magistrate passes an order under section 155-2 CRPC. So in order to facilitate or enable the informant to get an order from the magistrate, what section 155-1 CRPC says is that the SHO should refer the informant to the jurisdictional magistrate. Now is it very practically possible or is it easily possible supposing the SHO refers an ordinary informant, he is an ordinary rustic villager a rustic villager comes to the police station complaining of non-cognitive offenses. Now if the police officer refers him to the magistrate, what will he do? Who will help him? Therefore, even though the section says he shall be referred to the jurisdictional magistrate the Supreme Court has observed in paragraph 11 of state of Gujarat versus Girish Dada Krishnan state of Gujarat versus Girish Dada Krishnan AR 2014 Supreme Court 620 AR 2014 Supreme Court 620 corresponding to 2014 3 SCC 659 2014 volume 3 SCC 659. The judges are G. S. Nguyen, Gyan Sudha Mishra Gyan Sudha Mishra is the author of the judgment where the lordship said that the SHO can himself approve the magistrate and get an order under section 155 subsection 2 instead of driving the first informant to the magistrate because if the first informant were to be referred to the magistrate how will he meet the magistrate? It is difficult to meet the magistrate for a rustic villager. He may have to approach some advocate and to help him for getting orders under section 155 2 and will an advocate help him without payment of fees so it will be an expensive affair for a rustic villager to get the orders of the magistrate. That is why Supreme Court speaking through justice Gyan Sudha Mishra notably said that the police officer himself obtained the orders under section 155 2 After all we are living in an era of people friendly police and we call here Jainamaitri police station. Jainamaitri police station is people friendly police therefore police can always come to the rescue of the citizen by helping him in such a way now instead of driving him to the magistrate. Now what happens once the magistrate passes an order under section 155 2 CRPC then there is a legal fiction under section 155 3 CRPC converting the case into a deemed cognizable case. It is a to begin with it is a cognizable it is a non-cognizable case all the offenses are non-cognizable the only thing which has happened is magistrate has passed an order under section 155 2 that order under 155 2 converts the non-cognizable case into a cognizable case it is a fiction legal fiction and it becomes a deemed cognizable case entitling the SHO to exercise the same powers which he can exercise in respect of investigation of a cognizable case except the power to arrest without a warrant. He does not have the power to arrest without a warrant after they are all non-cognizable offenses they are relatively minor offenses therefore the officer does not have the power to arrest unless a magistrate issues a warrant of arrest therefore without a warrant of arrest the officer cannot arrest him but once the the order under section 155 2 has been passed by the magistrate in respect of a non-cognizable case it becomes for all intents and purposes a cognizable case enabling or entitling the SHO to register an FIR commends investigation and after the close of investigation under chapter 12 CRPC he can file a police report either for placing the accused for trial or not placing the accused for trial depending on the strength of the evidence collected thus armed with the order of order under section 155 2 the SHO will be entitled to register an FIR and if necessary commends investigation and file a police report before the magistrate once the investigation is complete the police officer in charge of the police station has to file a police report as defined under section 2 R before the appropriate magistrate under section 173 subsection 2 of CRP that police report is the document on which the magistrate can take cognizance of the offense this is how the procedure is done I suppose I have completed this but six questions we have answered any doubts you are freed welcome there is only one question as of now this is in a preliminary inquiry the inquiry has to be discrete can an accused be called for a statement in a preliminary inquiry he can call he can call the accused and ask questions he can definitely orally examine him orally examine him we are not on preliminary inquiry in this session but during preliminary inquiry the officer delegate the officer empowered to conduct preliminary inquiry as the station officer can question witnesses including the accused also because even if it were investigation under section 161 section 161 is the power of the section 161 CRP gives the power of the police officer conducting investigation to examine orally any person supposed to be acquainted with the facts and circumstances of the case now any person supposed to be acquainted with the facts and circumstances of the case this phraseology has been interpreted by the court to include an accused person also not only witnesses but even the accused person he is the best person who is acquainted with the facts and circumstances of the case he knows what happened culprit is it not so that the person includes the accused person also if it were an investigation police officer can certainly question him and even record his statement so likewise the preliminary inquiry there is no provision in the CRP as I told you it is a judge made law preliminary inquiry by the police officer therefore during preliminary it is a discrete inquiry discrete inquiry which has to be conducted just to ascertain whether there is a cognizant of an disclose or not if the cognizant of an disclose he has to register the FIR must say must yes so though we have done a session on legal fiction one has asked what is the legal fiction legal fiction is what is not there is assumed to be there by the operation of law for example all the offenses are non-cognizable offenses the law says that once the magistrate grants permission under section 155-2 it shall be deemed to be a cognizable case for the purpose of registering an FIR and conducting investigation as though it is a cognizable case it is actually a non-cognizable case but this fiction operates it is what you call legal fiction you are not audible there is a cognizable and a non-cognizable offense during FIR after investigating cognizable offense is not charged is the final report effective I didn't really understand the question after investigation he finds that after investigation only cognizable offenses are not charged is the final report effective it will have the it will conform into a complaint by virtue of the explanation to section 2d CRP the offenses are if it is a cognizable case consisting of non-cognizable offenses and cognizable offenses so it becomes a cognizable case now the police officer conducted investigation he conducted investigation but after investigation he discovered that the cognizable offense alleged is not there all the offenses are only non-cognizable offenses so he should have taken the permission of the magistrate there again there is a legal fiction created by the explanation to section 2d CRP 2d is the definition of a complaint there the explanation says if in a cognizable case the police officer after investigation discovers that the cognizable offense alleged is has not been committed all the offenses are non-cognizable offenses even though he committed he conducted the investigation without the order of the magistrate under section 155 2 because all the offenses are non-cognizable he commenced the investigation because of the presence of one cognizable offense therefore his investigation was valid and after the completion of investigation with regard to the non-cognizable offenses he can file a complaint it is not a police report what he will be filing before the magistrate will be a complaint deemed a complaint and he shall be deemed to be the complainant you please read the explanation to section 2d of CRP that is your answer last question we are taking it says motor vehicle act offenses are mostly non-cognizable then how can the police file report I am not very familiar with motor vehicle offenses I have not been dealing with those offenses of course I can look up and say because there will be at least one cognizable offense and probably motor vehicle act must be saying that offenses under this act are cognizable under the CRPC they may not be cognizable they may be non-cognizable the special act might say that the offenses under this act are cognizable in which case not understanding what is contained in CRPC the motor vehicle act will prevail whatever be the special law the special law says that an offense which is non-cognizable under the CRPC is cognizable under the special law then special law promotion will prevail this is because of the operation of section 4 to section 4 subsection 2 of CRP section 4 to say any all investigation inquiry and trial in respect of other laws shall also be in accordance with the CRPC except any deviation is made by the special law now supposing a special law says all the offenses under this act shall be cognizable then not understanding the provision under the CRPC these offenses will be cognizable and police officer can arrest the offender not understanding part 2 of CRPC first to show you this should be the answer I have not checked up the provision again you are not audible the last question is can you explain why preliminary inquiry is called as judgment law judges don't know why they ordered preliminary inquiry only instance of preliminary inquiry ordered by the Supreme Court was way back in 1971 in Sirajudin versus state of Madras where in a corruption case the Supreme Court said that in corruption cases there should be a vigilance department in every state and the investigation should be conducted by the vigilance police and in corruption case you are dealing with a public servant public servant he might be a very reputed officer in a government department or a public department so if you are prosecuting him and if the prosecution turned out to be false very incalculable harm may be caused to the public servant because he was holding a respective post even curry favours from the public servant might be filing a vexation complaint against him therefore Supreme Court warned that if you are prosecuting a public servant and if ultimately it turns out to be a false complaint you are unnecessarily vexing a public servant therefore before a public servant is a prosecutor before an FIR is registered against a public servant the police officer in charge of a police station should conduct some concrete enquiry to find out whether the complaint is genuine or not the veracity of the complaint but unfortunately Lady Thakumari went further to say that veracity of the complaint need not be gone into only thing to be gone into is to whether the information reveals the disclose of the confession of a cognitive problem that's all anyway in my view if the police officer can conduct a preliminary enquiry it should be for the purpose of finding out the genuineness of the complaint yes thank you for sharing your knowledge sir