The three years or with fine only

The Code of Criminal Procedure has not given any guidelines to determine whether a particular offence is cognizable or non-cognizable. However, the Code contains the Schedule I which refers to all the offences under the Indian Penal Code and puts them into cognizable and non-cognizable categories. The Schedule operates as a law and the same power may be conferred by another statute.

The words ‘under any law for the time being in force’ in Section 2(c) of the Code are wide enough to include an express or implied provision of any law or enactment and would cover the application of the maxims—‘qui facit per alium facit per se (whatever a man may do of himself, he may do by another)’ and ‘qui per alium facit, per seipsum facere videtur (he who does an act through another is deemed in law to do it himself)’—to any provision of any enactment, in order to arrive at the true intention of the enactment.

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All the serious offences are considered as cognizable. The seriousness of the offence leads for maximum punishment. The offences under the laws other than the Indian Penal Code which are punishable with imprisonment for three years or more have been shown in the First Schedule as cognizable and those punishable with less than three years or with fine only have been shown as non-cognizable.

The term “a police officer” used in the definition of cognizable offence means a police officer of certain rank, but not any police officer and the offence will nevertheless remain a cognizable offence if the offender can be arrested by certain police officers or a particular class of police officers only.

In cognizable offence cases, police have hardly any time or opportunity to obtain a warrant of arrest from court; and for the offence being serious the offender might escape by the time a warrant is obtained or tamper with material evidence.

In the case of cognizable offence it is the responsibility of the State (and the police) to bring the offender to justice. The aggrieved party is again not left with the option of filing a complaint; it is the legal duty of the police as the custodian of the welfare of the society to apprehend offenders in cognizable cases, to initiate proceedings and to prevent the commission of such offence.

The words ‘may arrest’ of the definition of ‘cognizable- offence’ indicate that arrest is not a must in every cognizable case. It is the discretion of the police officer to arrest or not to arrest and the discretion cannot be arbitrary one but must be guided by the principles laid down by the Apex Court.

Non-cognizable offences are minor offences where the injury done to the society is comparatively small and as such the aggrieved party is expected to lodge a complaint before criminal proceedings are initiated.

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 is left to the initiative and efforts of private citizens.

In the case of a non-cognizable offence, a police officer cannot arrest without a warrant and such an officer has neither the duty nor the power to investigate into such offence without the authority given by a Judicial Magistrate.

If a Judicial Magistrate considers it desirable that a non-cognizable case should be investigated into by the police, he can order the police to do so. In that case the police officer will have all the powers in respect of investigation (except the power to arrest without warrant) as he would have exercised if the case were a cognizable one.

The general rule is that serious offences are cognizable while the minor offences are non-cognizable. However, some minor or light offences such as an unlawful assembly are made cognizable because of the grave consequences that might ensue if the mischief is not nipped in the bud by taking immediate steps. Similarly, serious offences like forgery or procuring a miscarriage are considered as non-cognizable offences.

The offences under Prevention of Corruption Act, 1988, are cognizable offences. A complaint regarding an offence under Section 7 of the Essential Commodities Act is cognizable. Where the offence complained of under the Essential Commodities Act is punishable with three years imprisonment, it is a cognizable offence. The offences under the Prevention of Food Adulteration Act, 1954 are cognizable.

Proceedings in non-cognizable cases start by means of complaint but no complaint is needed in a cognizable case.

(ii) Bailable and non-bailable offences:

Section 2(a) of the Code of Criminal Procedure provides that ‘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.

Bail means the guarantee or sum of money demanded by a law court, paid by or for a person accused of wrong doing or arrested on a criminal charge as security that he will appear for his trial or examination when duly required, if he is temporarily released until which time he is allowed to go free.

Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent’s rights, bail covers both releases on one’s bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.

The Code of Criminal Procedure has not given any criterion to determine whether any particular offence is bailable or non-bailable. The bailable and non-bailable cases are shown in the First Schedule of the Code of Criminal Procedure.

According to the First Schedule, offences under laws other than the Indian Penal Code which are punishable with imprisonment for three years or more, have been considered as ‘non-bailable’ offences and others which are punishable with less than three years imprisonment or with fine only are considered as ‘bailable’ offences.

As a general proposition, it can be said that by and large serious offences are considered as non-bailable and others as bailable.

A bailable offence is that:—

(i) Which is mentioned in the First Schedule of the Criminal Procedure Code; or

(ii) Which is made bailable by any other law for the time being in force?

Bailable offences are less serious than non-bailable offences. In bailable offence bail is granted as a matter of course by the police officer or by the Court. If a person accused of a bailable offence is arrested or detained without warrant, he has a right to be released on bail. Non-bailable offence does not mean that bail can in no case be granted.

It only means that bail can be granted in the discretion of the Court or the authorities concerned. But a person under the age of sixteen years or any woman or any sick or infirm person may be released on bail even if the offence be punishable with imprisonment for life or with death.

An offence under Rule 125 of the Defence of India Rules, 1962 is non-bailable.

The term ‘non-bailable offence’ does not imply that an accused person cannot be released on bail under any circumstances. Section 437 of the Code of Criminal Procedure provides the provisions when bail may be taken in case of non-bailable offence; except where there appear reasonable grounds for believing that the accused person is guilty of an offence punishable with death or imprisonment for life.

A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Section 436 to be released on bail.

As per Section 50(2) of the Code of Criminal Procedure that where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

(iii) Compoundable and non-compoundable offences Compoundable offences:

The compounding of an offence denotes that the dispute between the parties has been settled or adjusted by agreement, the person against whom the offence has been committed having received some consideration or gratification not to prosecute the accused.

Section 320 of the Code of Criminal Procedure provides a list of offences punishable under different sections of the Indian Penal Code which may be compounded by the persons mentioned in the table. In cases mentioned in Section 320(1) of the Code, composition can be effected without the permission of the Court. In cases mentioned in Section 320(2) of the Code, composition can be effected with the permission of the Court before which any prosecution for such offence is pending.

A composition is an arrangement whereby there is settlement of the differences between the injured party and the person against whom the complaint is made. If both the parties agree that there has been settlement by agreement or compromise, then the Court has to dispose of the case in terms of that compromise and the petitioner is to be acquitted. Compromise and compounding cannot be equated.

In disputes where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.

In Manoj & Another v. State of Madhya Pradesh, the accused was convicted for causing hurt to complainant by dangerous weapons. Both the parties are residents of the same village and with the intervention of the village panchayat, they had developed family relations and the complainant had no grievance against the accused.

The complainant has compounded the offence with the appellants. The appellants and the complainant have categorically stated in their affidavit filed before the Court that after the incident they have developed family relations and they wish to reside peacefully in the village in future without any kind of disruption in their future lives.

The Court has satisfied that the complainant has voluntarily desired to compound the offence with the appellants for sufficient and genuine reasons stated in their respective affidavits and such compounding is legal and valid. The Court allowed the parties to compound the offence under Section 324, I.PC. In view of the compounding, the conviction and sentence is set aside. The appellants, who are in jail undergoing sentence, were set free forthwith. The appeal is disposed of accordingly.

A composition is not a mere arrangement to settle the disputes in future as the result of some action either by themselves or by third parties. A mere agreement between the parties to refer the case to arbitrator or a third party is not a final settlement of the dispute and does not amount to a composition.

When an offence is compounded, the order of the Court is an order of acquittal and not of discharge.

Composition is different from withdrawal. A withdrawal under Section 257 must be by intimation to the Magistrate holding the trial, whereas in cases mentioned in Section 320(1) can be effected without the permission of the Court. A withdrawal is permissible in a summons case, whereas most of the compoundable cases are warrant cases.

A withdrawal is the result of act of one party only, namely, the complainant, without the consent of the accused, whereas a composition presupposes an agreement between both parties and implies consent of the accused. On the withdrawal of the complainant the Magistrate can award compensation to the accused, but compensation cannot be awarded when a case is compounded.

The composition of an offence is illegal if the offence is one of public concern, but lawful if the offence is of a private nature and for which damages may be recovered in a civil action.

Non-Compoundable offences:

Offences other than those mentioned in Section 320 of the Code are not compoundable. Section 320 of the Code is ‘exhaustive’ of the circumstances and conditions under which composition can be effected. If a criminal case is declared to be non-compoundable, then it is against public policy to compound it, and agreement to that end is wholly void in law. The High Court in exercise of its inherent powers cannot permit compounding of non-compoundable offences, only in special cases the Supreme Court can grant such permission.