Cognizable and Non-Cognizable offence in India

The Criminal Procedure Code was brought into existence to provide for machinery for the provision and execution of punishment in consonance with the substantive criminal law (the Indian Penal Code, or any other criminal law). It basically provides rules of proceedings against an accused.

Under the CrPC, all offenses may be characterized on the basis of arrest or cognizance, on the basis of the right to bail, on the basis of the type of trial and on the basis of right to compromise.

ON THE BASIS OF ARREST OR COGNIZANCE

This article would only deal with the classification based on arrest or cognizance.

RATIO OF SUCH CLASSIFICATION

The offenses are classified according to whether a warrant is required for the purpose of investigation and arrest by the concerned police officers. This classification has been made to serve a two-fold purpose:-

1. The first one being, execution of arrest without warrant, and
2. Secondly, the investigation of offenses without the permission of the court.

BASIS OF CLASSIFICATION

The cognizance of an offense depends upon its seriousness. The seriousness of the offense is decided by looking into the punishment of that offense. All offenses punishable with imprisonment of more than three years are the serious offenses and hence are considered to be cognizable.

DEFINITION: The terms cognizable and non-cognizable offense have been defined in Section 2(c) and Section 2(l) respectively as under:-

Section 2 (c) defines cognizable offense as any offense for which a police officer may execute a lawful arrest without a warrant, While

Section 2 (l) defines non- cognizable offense as any offense in which a police officer is ripped off the authority to execute an arrest without a warrant.

Further, the word cognizance has been interpreted by the court in Ajit Kumar Palit v. State of West Bengal[1] as the word cognizance has not been defined in the code. The court explained that it merely means “become aware of” and when used with reference to a court, or a judge, or any judicial officer, it means “to take notice judicially”.

The code does not lay down a precise test of classifying any provided offense as cognizable or non-cognizable. However, it does broadly state that any offense punishable with death, or life imprisonment, or any other punishment over 3 years is to be regarded as a cognizable offense, while expressly providing that this test is subjected to exceptions.

The Supreme Court in the case of State of West Bengal v. Swaran Kumar Guha and Others[2] observed that giving unfettered discretion to the police to decide whether a case is cognizable or non-cognizable would prove to be a ruthless destroyer of personal freedom. It was emphasized that the principles of natural justice are to be followed in every case of determination. It further directed that:

1. It is necessary that all the reasons for making an offense cognizable must be disclosed in the FIR before starting an investigation.
2. The exercise of the powers of investigation must not be misused in any way violating the constitution and legal rights of the accused.
3. But, if in any case it is felt by the court that the rights of an individual are being violated in the investigation process or that the correct procedure is not being followed, the court must intervene in such process.

INVESTIGATION OF COGNIZABLE OFFENCE BY POLICE

The officer-in-charge of a police station may investigate any offense registered in his police station, whether the offense was committed within or without the jurisdiction of the said police station. In such cases, any police officer above the rank of Head Constable is empowered to investigate it on the behalf of the Station house Officer.

Sections 156- 158 lay down the procedure that the police needs to follow on receipt of a complaint of a cognizable offense. Under these provisions, the police are empowered to register complaint even on a piece of information which raises a reasonable suspicion of commission of an offense, although a final report has to be sent to the magistrate. It has also been provided that the police may suo motu take up cognizable cases. However, the police have to ensure that the arrested person cannot be detained for more than 24 hours in the absence of a special order from a magistrate. If an investigation can, however, not be completed within the said 24 hours, and the investigating officer thinks that the accusations are well-found, then the officer must forward the accused to the nearest magistrate.

INVESTIGATION OF NON-COGNIZABLE OFFENCE BY POLICE

In the case of non-cognizable offense, the officer may get an order from the magistrate to investigate, but he shall have no power to arrest the accused without a warrant.

When a piece of information is given to an officer of a non-cognizable offense, he is bound to record such information in a book to be maintained by him in such form as may be prescribed by the state government, and further refer the informant to the magistrate.

CRITICISM

The execution of arrest without warrant and investigation without the permission of the court has led to some undesirable consequences too. For instance, in respect of social reform litigation where the offense is punishable with less than three years, there is practically no enforcement of the law as the police are not authorized to take any initiative in such cases.[3] However, if such offenses are expressly made cognizable, it would serve the social policy better. Steps have been taken towards making such express provisions, for instance, a person accused under

1. The Child Marriage Restraint Act, 1929
2. Possession without lawful excuse
3. Who has been proclaimed as an offender
4. Obstruction of the police officer in performing his duties
5. Desertion of the Armed forces of the Union, etc.

CONCLUSION

I would like to conclude that although the classification of offenses has been made to make the dispensation of justice easier, still it is hindered because of grey area left in the classification, so there remains a need for reclassification as suggested above.

[1] AIR 1963 SC 765

[2] 1982 SCC 561

[3] R.V.S. Kelkar, Outlines of Criminal Procedure, Lucknow: Eastern Book Company

Child Sexual Abuse in India

Child abuse is increasingly gaining attention due to the increase in the rate of crime towards children. India and many other parts of the world are constantly dealing with child abuse and in curbing the violence against children. Child abuse can be in various forms being physical, emotional, sexual, neglect and exploitation.

Children and adolescents are constant victims of sexual abuse, either by known members of the family or by strangers. Such cases which involve the involvement of family members often go unreported. There are many undesirable and unavoidable effects of such cases for which the children fall prey.

Child Sexual Abuse in India

As per the latest report of the National Crime Records Bureau, two most shocking revelation was made:

1. India records the maximum number of cases of Child Sexual abuse even in a situation where all the cases of such abuse are not recorded.
2. In India, every fifteen minutes, a child is abused sexually, which makes the count as four child victims every hour.[1]

Child Sexual Abuse can be defined as given by WHO

“The involvement of a child in sexual activity that he or she does not fully comprehend and is unable to give informed consent to, or for which the child is not developmentally prepared, or else that violate the laws or social taboos of society.”[2]

In a survey conducted in 2017 by the Humanitarian Aid organization World vision India, with more than 45,000 children participating from 26 states, it was revealed that one in every two children have been a victim of such abuse.[3]

Protection of Children from Sexual Offences Act, 2012

To decrease and penalize the act of child sexual abuse strictly Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012) was passed by the parliament and received Presidential Assent on 19^th June 2012. Before this enactment, IPC covered all the offenses but there was no distinction between adult and child victims.

The Act defines a child as a person who is under the age of 18.[4] The act was passed to provide protection from sexual abuse to all children below the age of 18 years. In the case of Ms. Eera Through Dr. Manjula v. State (Govt. of NCT of Delhi)[5], the proposal was a consideration should be given to mental age of a person, however the same was not accepted by the court. The act is formulated and at all stages is determined to work for the best interest of the child.

Salient features of the Act:

1. The aim of enacting this act is to protect the children and their rights.
2. The act provides for special courts with the objective of speedy disposal of cases. (section 28). After taking cognizance, the trial for the offense shall be completed within a period of one year. (Section 35)
3. The act is not gender-sensitive and there is no difference considered on the basis of gender.
4. Types of offenses recognized and punishment:
5. Penetrative Sexual Assault (Section 4): punished which imprisonment not less than seven years but may extend to imprisonment for life and fine.
6. Aggravated penetrative Sexual Assault (Section 6): the convict may be punished with rigorous imprisonment of ten years extending to imprisonment for life and fine.
7. Sexual Assault (Section 8): imprisonment may be between three years to five years and fine.
8. Aggravated sexual assault (Section 10): this act may be punished with imprisonment not less than five years which may extend to seven years and fine.
9. Sexual harassment (Section 12): punished with imprisonment which may extend up to three years and fine.
10. The identity of any victim cannot be disclosed by the media as per section 23. Such an act is punishable with imprisonment for a term of six months and may extend to one year or with a fine.
11. CWC (Child welfare Committees) are vested with the role of taking the decision of either keeping the child in an institution or with family within three days of the institution of the complaint.
12. The proceeding of the trial under this act is conducted in camera with parents or any other person or child’s choice being present.

In the case of Shankar Kisanrao Khade v State of Maharashtra[6], the convict, in this case, has subjected the victim (a minor girl, 11 years) to murder after series of rape and was awarded death sentence by the Bombay High Court which was later reduced to rigorous imprisonment for life. While the trial for the case was going on the POSCO Act was passed. In this case, the judge reiterated the fact that our laws focus more on penalizing after the commission of the crime and there are fewer preventive measures. The focus should be the best interest of the child while deciding any of the matter of child abuse.

Conclusion

Child Sexual Abuse is often a phenomenon which family members prefer to keep it as a secret and which only results in more adverse effects on the child. Indian Law is penal in nature whereas it should provide for safeguarding and protecting the best interest of the child. The POSCO act makes it mandatory to report of an offense but the matter still goes unreported and unheard. Even after the enactment of the act, the number of cases did not decrease but repeatedly went up. Rehabilitation and prevention should be the focus.

[1] https://www.bbc.com/news/world-asia-india-42193533

[2] Guidelines for medico-legal care for victims of sexual violence; Geneva: World Health Organization

[3] https://www.hindustantimes.com/india-news/one-in-every-two-children-victim-of-sexual-abuse-says-survey/story-spc4MsZTJsmjyrlTZJep7L.html

[4] Section 2 of the POSCO Act

[5] S.L.P (Crl) Nos. 26402642 of 2016

[6] Criminal Appeal No. 362-363 of 2010

Powers of police under Code of Criminal Procedure

Powers of Police are very wide and are based on two main functions of Police. These functions are Maintaining of Law and Order and Investigation of illegal activities. The Police Act defines Police as an instrument for prevention and detection of Crime.[i] The Police define most of its powers from the Code of Criminal Procedure, 1973 and the Police Act, 1861. Following are some of the Powers of Police;

Powers of Police to Investigate

The Investigation of Police starts when;

• When someone lodges an FIR(First Information Report).[ii]
• When a Police officer suspects commission of a cognizable offense.[iii]
• Whenever a competent magistrate orders the Police.[iv]

The Police have the power to investigate Cognizable as well as Non-Cognizable offenses.[v] Police officers can investigate Cognizable offenses without the magistrate’s orders. If a Police officer suspects the commission of a cognizable offense, he has the power to investigate under s 157 without the filing of FIR.[vi] Police also have the power to require the presence of witnesses in order to pursue an investigation. Males under 15 years and over 60 years of age, females, or mentally/physically disabled persons shall not be required to attend as a witness except for their residences.[vii] Police can examine these witnesses as well.[viii] Police also has the power to conduct a medical examination of rape victims.[ix]

Powers of Police to Arrest

Police have the power to arrest the persons as well. The Police can make the arrests for both Cognizable as well as Non-cognizable offenses. For non-cognizable offenses, a Police officer has no authority to arrest a person without warrant. However, a Police officer can arrest a person without a warrant for Cognizable offenses.[x] In case of adequate grounds, the magistrate may extend the period of detention to 15 days. Also, the Police have the power to release the accused in case of lack of evidence.[xi]

Power of Preventive Arrest

The preventive arrest is the detaining of a person who is likely to commit an offense. It is a highly debated topic all over the world. In India, s 107 and s 151 of CrPC give the powers of Police for preventive detention mainly. In case an Executive Magistrate recieves information that a person is likely to commit a breach of peace, he may order him to show cause. The magistrate may also order him to execute a bond to keep peace in such period.[xii] It is the duty of the Police to prevent Cognizable offenses.[xiii] Also, the Police have the power to arrest a person without a warrant or an order from the magistrate in cases they have knowledge that such person is planning to commit a cognizable offense.[xiv]

Though, the Police can only make the arrest if it is the only way to prevent such offense. The idea behind these provisions is to avert the commission of an offense. The constitutional validity of these Sections has always been in controversy. Many persons have filed petitions questioning the validity of the provisions of the preventive arrest.[xv] In a case, certain landowners of MP were protesting after being affected by the Sardar Sarovar Project. Even though they posed no threat to commit cognizable offenses but were still beaten up and arrested. The Court held that this was in violation of Article 21 of the Constitution.[xvi] However, s 151 already mentions the grounds of the arrests. Also, preventive arrest laws are given legal recognition under the Constitution of India.[xvii] So, these provisions cannot be said to be in violation of Articles 21 and 22.[xviii]

Read Also: Everything You Need to Know About Criminal Law In India

Abuse of Powers of Police under Preventive Arrest

There have been many instances when these powers have been misused by the Police as well. This was because of the arbitrary and unjust use of these powers. In a case, the persons arrested under s 107 and 151 were not given a chance to be heard for 6 days. The case was tried without any scrutiny under issue. And, no order was issued under s 111 of the CrPC. The Karnataka HC held that this process was arbitrary and unjust as the Police didn’t follow proper procedure.[xix]

In the case of Ahmed Noormohmed Bhatti v State of Gujarat[xx], it was suggested that the guidelines given for the detainees must be followed in cases of Preventive arrests as well. The Court gave these guidelines in the case of D K Basu v State of West Bengal. The Court also held that a provision is not unreasonable or unconstitutional because of arbitrary exercise of it by the authorities. Proper scrutiny of each case is to be done to determine whether the arrest is unconstitutional or not.

Conclusion

Police is an important part of a healthy society. We always remember Police first when we are in trouble or under a threat. The powers of the Police are invested in them to have a smooth and healthy society. But, they ultimately have a duty to protects the rights and interests of the individuals. Due to this, they must use their powers with the utmost care and caution. The author notes that there are many instances where the Police have misused these provisions and there should be a proper check on these practices.

[i] The Police Act 1861, preamble.

[ii] Code of Criminal Procedure 1973, s 154.

[iii] ibid, s 157(1), 156(1).

[iv] Code of Criminal Procedure 1973, s 156(3).

[v] ibid, s 155, 156.

[vi] State of Maharashtra v Sarangdharsingh Shivdassingh Chavan (2011) 1 SCC 577.

[vii] Code of Criminal Procedure 1973, s 160.

[viii] ibid, s 161.

[ix] Code of Criminal Procedure 1973, s 164A.

[x] ibid, s 2(c), 2(l).

[xi] Code of Criminal Procedure 1973, s 169.

[xii] ibid, s 107.

[xiii] Code of Criminal Procedure 1973, s 149.

[xiv] ibid, s 151.

[xv] ‘Role of Police and its power to Investigate’ (Lawnn, 14 February 2017) <https://lawnn.com/role-police-power-investigate/> accessed 12 December 2018.

[xvi] Medha Patkar v State (2011) 8 SCC 55.

[xvii] Constitution of India 1950, a 22.

[xviii] Ahmed Noormohmed Bhatti v State of Gujarat (1999) SCC (Cri) 1014.

[xix] Sathi Sundaresh v The State PSI of Moodigere 2007 (4) CrLJ 649.

[xx] Supra Note xviii.

Public Prosecutor Meaning and Functions

INTRODUCTION

Public prosecutors are appointed in almost all the common law countries as an agent of the Attorney General to represent the interest of general people in the criminal justice system. They serve as a foundation of the Rule of Law’s principle that everyone should have an opportunity of being heard (audi alteram partem). The prosecutors are duty-bound to act in a way that strikes the right balance between the competing interests of conviction of guilty, protection of citizen’s rights and freedoms and protection of the public from crimes.

DEFINITION OF PUBLIC PROSECUTOR

Public Prosecutor has been defined in the Code of Criminal Procedure under Section 2 (u) as under:-

“Public prosecutor meaning is a person appointed under Section 24; it further includes any person acting under the directions of a Public Prosecutor.”

In India, the Prosecutors act on the directions of the Judge. Being an officer of the court, the Prosecutor is required to act in public interest and not seeking conviction by hook or crook. In Babu v. State of Kerala[1], it was stated that Public Prosecutors are the ministers of justice whose job is to assist the state to administer justice.

When Section 2(u) is read with Section 24, the following hierarchy can be traced:-

Public Prosecutor appointed by the Central Government->Public Prosecutor appointed by the State Government->Additional Public Prosecutor appointed by the State->Special Public Prosecutor appointed by the Central Government->Special Public Prosecutor appointed by the State Government.

Here, it is pertinent to note that according to the pattern prescribed by Criminal Procedure Code, the Public Prosecutors (including Additional Public Prosecutors) are required to conduct criminal proceedings in the Sessions and the High Court, while the Assistant Public Prosecutors are required to conduct proceedings on the behalf of the Magistrate’s court.

RATIONALE BEHIND THE ESTABLISHMENT OF THE OFFICE OF PUBLIC PROSECUTOR

The rationale behind the appointment of Public Prosecution is that crimes committed by an individual or a group are deemed to have been committed against society. Hence it is the duty of the state to bring justice to the people or group affected by the crime. In India, the Criminal Justice system is required to function within the boundaries of the Indian Constitution, which means the Public Prosecutor needs to follow the following principles:-

1. Presumption of innocence, until proven guilty beyond a reasonable doubt,
2. Right to life and personal liberty, until deprived by a procedure established by law[2],
3. Equality before the law[3],
4. Protection against double jeopardy[4],
5. Protection against ex-post-facto law[5],
6. Protection against self- incrimination[6],

What is The Role of Public Prosecutor

The Directorate of Prosecution is established with the objective of exercising supervision and scrutiny over all the prosecuting agencies. It is headed by a Director who is assisted by various subordinate rank officers and ministerial staff. The role of Public Prosecutor is the following in the investigation process:-

1. Appearing in the Court and obtaining an arrest warrant,
2. Obtaining search warrants to search specified premises,
3. Obtaining Police custody remand for custodial interrogation of the accused[7],
4. Initiating proceeding for declaring a non-traceable accused a proclaimed offender[8],
5. Recording his advice in the Police file regarding the advisability of the prosecution.

PUBLIC PROSECUTOR Functions ACCORDING TO POST

Assistant Public Prosecutor: They scrutinize the charge sheets prepared by the investigating agencies and submit the discharge/ acquittal. They are further in charge of evaluating the evidence and filing revision petitions as well as conducting cases in the Court of Metropolitan Magistrates.

Additional Prosecutor: They conduct cases in the Sessions Court.

Chief Prosecutor: They supervise the work of Assistant Public Prosecutor in the Metropolitan Magistrate’s Court.

Public Prosecutor: They supervise the work of Additional Public Prosecutor in the Sessions Court.

ROLE OF THE PUBLIC PROSECUTOR DURING TRIALS

1. Speedy trial: The Public Prosecutor being an officer of the Court can play the role of ensuring a speedy trial, which forms an essential part of the Right to Life enshrined under Article 21. The Prosecutors are responsible for ensuring that all the essential witnesses are called and none of the witnesses are left non-examined, further making sure that all the required documents are produced before the court in time while ensuring that no uncalled for the delay is caused to the proceeding.
2. Sentencing: After the accused is proven guilty, the defense counsel and the Public Prosecutor are called upon to decide the quantum of the punishment. At this stage, the Public Prosecutor is required to exercise his discretion of arguing for an adequate punishment while keeping in view the gravity of the offence, the facts and the circumstances of the case. It is very important at this stage that the Prosecutor help the Court arrive at a judicious decision.

PRESENT STATE OF PUBLIC PROSECUTORS IN INDIA

The office of the Public Prosecutors in India suffers from various incompetencies due to rigid and various unnecessary formalities. Most of the offices have inadequate staff and infrastructure

SUGGESTIONS TO IMPROVE THE POSITION OF PROSECUTORS

1. The foremost problem is lack of quality law education in most of the Law Colleges in India.
2. Further, the earnings are very low as compared to the ones that can be earned in open markets. The only way to remedy this situation is by improving the salary structure.
3. A national-level institute needs to be set up to impart proper training upon the aspiring candidates.

CONCLUSION

In the final analysis, a Public Prosecutor is an officer of the Court assisting in just and equitable impartation of justice. He is required to be fair to the opposite party while trying to act for the good of society. The guiding principle of any Prosecutor should be justice, equity, and a good conscience and not just the letter of law.

[1] (1984 KLT) 165

[2] Article 21 of the Indian Constitution.

[3] Article 14 of the Indian Constitution.

[4] Article 20 (2) of the Indian Constitution.

[5] Article 20 (1) of the Indian Constitution.

[6] Article 20 (3) of the Indian Constitution.

[7] Section 167 of Cr. P.C.

[8] Section 82 of Cr.P.C.

Everything You Need to Know About Criminal Law In India

Criminal law in India

In India, crime is an offense against the State. The law has given a massive status to crimes, so much so that punishments could range from fine to the death penalty. Crime is against the welfare of society, and therefore, there are many legislations against the same in our country. The prominent ones include the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872. Besides these significant acts, there are acts such as the Dowry Prohibition Act, 1961, the Juvenile Justice Act, 2000, the Indecent Representation of Women (Prohibition) Act, 1986, the Narcotics drugs and psychotropic substances Act, 1985, etc.

The Three main legislations

The Indian Penal Code (IPC)

The Indian Penal Code is the official criminal code of India, which was drafted way back in 1860. It’s objective is to provide a general penal law for the country. It has 511 sections across 23 chapters, containing the list of crimes along with their definitions and punishments. The IPC has been amended several times and is now supplemented by other Acts. Its jurisdiction extends to the whole of India except the State of Jammu and Kashmir.

The Code of Criminal Procedure (CrPC)

The Code of Criminal Procedure is the primary legislation on the procedure for the regulation of criminal law in India. The CrPC details the procedure for the investigation of the crime, presenting criminals before the court of law, collection of evidence, determination of guilt or innocence of the accused, imposition of penalties or punishments, etc. It further lays down the hierarchy of the courts competent to try criminal lawsuits. In descending order it is the High Court at the top followed by Sessions Court, First Class Judicial Magistrate, Second Class Judicial Magistrate and Executive Magistrate. There is a limit affixed for sentences which these courts can pass against the accused. The Supreme Court is the apex court, and it has the ultimate power. The code was enacted in 1973. At present, the CrPC contains 484 sections cut across 37 chapters. It also has two schedules and 56 forms.

The Indian Evidence Act

The Indian Evidence Act, 1872 contains a set of rules and allied issues which governs the admissibility of evidence in the law courts of India. It comprises 167 sections cut across 11 chapters. Types of evidence mentioned under the Indian Evidence Act, 1872 includes – Oral evidence, documentary evidence, primary evidence, secondary evidence, real evidence, hearsay evidence, judicial evidence, non-judicial evidence, direct evidence, and indirect evidence or circumstantial evidence.

Some other criminal legislation

Dowry Prohibition Act, 1961

The Dowry Prohibition Act was enacted in the year 1961 with the main motive to criminalize the practice of dowry in India. It consolidated the anti-dowry laws which had been passed in certain states of India. If any person gives or takes or abets dowry, then according to Section 3 of the Act he is liable for imprisonment for a minimum period of 5 years and fine of more than INR 15,000 or the value of the dowry received, whichever is higher. The Act also provides for penalty for directly or indirectly demanding dowry which involves a prison term of 6 months or more which is extendable up to 2 years along with a fine of INR 10,000.

Juvenile Justice (Care and Protection) Act, 2015

This Act allows for juveniles within the age bracket of 16-18 who are in conflict with the law and are involved in heinous offenses, to be tried as adults, i.e. above the age of 18. The Act was enforced on 15 January 2016. The Act has put in place a Juvenile Justice Board, which includes psychologists and sociologists, to decide if a juvenile within the age bracket of 16 to 18 should be tried as an adult or not. The Act also aims to make the adoption process of the orphaned, abandoned and surrendered children more smooth. The Act introduced the foster care and Judicial Waiver System in India.

Narcotics drugs and psychotropic substances Act, 1986

Also, referred to as the NDPS Act, this Act came into being on 14 November 1985 and has been amended thrice till date. Until 1985, India had no legislation regarding narcotics. This Act attempts to prohibit production, manufacture, cultivation, possession, selling, purchasing transporting, storing and/or consumption of any narcotic or psychotropic substance in India.

Indecent Representation of Women (Prohibition) Act, 1986

The Act was enacted to prohibit indecent representation of women through ads, publications, writings, paintings, figures or any other such manner.

CONCLUSION

India has a very sophisticated criminal legal framework. It has innumerable legislations covering various crimes and their punishments. It also lists down how the cases must be dealt with, provisions on investigation and evidence can also be found. Besides, the case laws or judicial precedents also play a significant role when judges pronounce the judgment. The decision of the Supreme Court is final and binding on all the criminal and civil courts of India. There is a hierarchy among criminal courts as well. A robust criminal law framework is essential to deter the perpetrators from committing crimes and also makes justice easy, feasible and quick.