Crime and Offence
Crime is the foundation of police investigation. If there is no crime, there can be no police investigation.
Though police has authority to ask for identification of a person but no more. If a person sticks to his ground and does not volunteer to answer every question asked by a police officer, he/she can't be pressed with an answer if the police officer concerned is not investigating a crime. Of course even then questioning has limitation but we shall delve more about that later.
Crime in substance is commission of an offensive act or omission to do a compulsive act, the same being declared as offence by law. For the purpose of police investigation, these offences are classified as Cognizable offences and Non-Cognizable Offences.
Cognizable offences
Assuming a crime has taken place and police is informed about it, will police start investigation immediately in every case? Short answer is: No.
Police is authorised to act only in respect of those offences which are declared as cognizable offence. In respect of other offences, called as non-cognizable police has to seek permission of the concerned magistrate before commencing investigation. Unless the Magistrate permits, no police investigation can take place in respect of non-cognizable offences. Section 2(c) of Criminal Procedure Code has a, rather not so clear, definition of cognizable offences as under:
"" 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;"
Similarly "non-cognizable offence" has been defined in section 2(l) of Cr.P.C. as under.
"non- cognizable offence" means an offence for which, and "non- cognizable case" means a case in which, a police officer has no authority to arrest without warrant"
Though for each offence, First Schedule of Cr.P.C. provides a table of offences under Penal Code, suffice it to say all the offences which are punishable with sentence of death and for more than 7 years imprisonment are cognizable. Very few punishable for less than 3 years are cognizable. As regards the offences under laws other than Penal Code, these laws itself often declare whether the offences there under shall be cognizable or non-cognizable.
In fact it is the duty of police officer to intervene and prevent commission of a cognizable offence. See section 149 of Cr.P.C. in this regard, which is as under:
"Police to prevent cognizable offences.– Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence."
If the police is alerted as to the threat to the law and order situation and if there is any violation on the part of the Police to discharge the statutory duty in taking steps to prevent cognizable offence, a Writ of Mandamus is very much liable to be issued granting police protection.
Essar Telecom vs State Of Kerala, decided by Kerala HC on 11 March, 2011.
When illegal burial is made a cognizable offence, it becomes apparent, that power to exhume from such unauthorized or wrong place is implicit, and the authorities are duty bound to restore the place to its former use or purpose by removing the body un-authorisedly/illegally buried there. The local authority and State can not permit and tolerate such encroachments and usurpation against public interest.
Badi Masjid Trust vs State of Maharashtra, decided on 12 July, 2011 by Bombay DB.
In above case express reliance was placed on section 149 of Cr.P.C. Therefore the police power extends to undoing the illegality committed provided such illegality is in respect of a cognizable offence.
It is the bounden duty of the police to record the complaints lodged by the University and to inquire into them in accordance with law. If any cognizable offence is disclosed, the police cannot refuse to act on the complaint lodged by the University for the reason merely that the orders issued by the University are not binding on outsiders.
Kurukshetra University v. State of Haryana, [1977] 4 SCC 451: AIR 1977 SC 2229, 1977 CriLJ 1900.
Bailable offences
Bailable offence means, as the term itself implies, that in certain offences, the accused person would be entitled to bail as a matter of right. If any person is alleged to have committed a bailable offence, the police is not supposed to arrest the accused but let him off after taking a bond of appearance from him undertaking to appear and participate in investigation. Or the police officer may ask him to bring one or two sureties e.g. some friend or relatives who who would vouch for the accused person and shall give in writing to produce the accused person as and when required by police. The bond provides that the accused person shall attend to the call of the police as and when required. Section 436 of Cr.P.C. governs the procedure for grant of bail in respect of bailable offences, and is as under:
"436. In what cases bail to be taken.– (1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A.
(2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.
It is unfortunate that this provision is abused too often. Instead of automatically granting bail, police officers dole out this as a special favour which of course is for dubious considerations.
The offences which are bailable, are listed in the schedule to the Criminal Procedure Code.
Non-bailable offences
The term non-bailable offence is a misnomer. It implies that for certain offences there is no bail. That is entirely wrong. In theory every accused person is entitled to bail.
The term non-bailable merely refers to those offences in which police can't grant bail. Therefore the accused person accused of a non-bailable offence is required to approach the Magistrate or the Sessions Court by way of a petition, for the purpose of bail. The concerned court shall consider the petition and pass appropriate orders granting or refusing bail after hearing the accused as well as the prosecution.
Power of Courts to grant bail
The power to grant bail in respect of some offences is vested in Magistrate. Sessions Court and High Court can grant bail in respect of all the offences but if the bail can be granted by Magistrate, the accused person is expected to approach the Magistrate first, before approaching higher courts.
The provisions for granting bail by the Magistrate are provided in Section 437, CrPC which reads as under:
"437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a nonbailable and cognizable offence :
Provided that the Court may direct that a person referred in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm :
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court."
Section 437, CrPC applied to relatively minor offences where the punishment provided is not life sentence or death. For these minor offences punishable with less than life imprisonment as well as other major offences punishable with life imprisonment or death, the power to grant bail is vested in High Court under section 439, CrPC which reads as under:
"439. Special powers of High Court or Court of Session regarding bail.-{1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any persons on bail be set aside or modified :
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
It may be noted that in Section 437, CrPC there is no provision for any prior notice of the application for bail to the Public Prosecutor but in Section 439, Cr.P.C. it is specifically mentioned that before granting bail to a person notice of the application for bail to the Public Prosecutor is required, unless for reasons to be recorded in writing, the Court is of opinion, that it is not practicable to give such notice.
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