Non-Cognizable Offence

A non-cognizable offence is an offence for which a police officer may not arrest a person without a warrant from a Magistrate, and for which the police may not investigate without a Magistrate's order under Section 155(2) of the BNSS (formerly Section 155(2) CrPC). Section 2(x) of the BNSS defines 'non-cognizable offence' as one in which a police officer has no authority to arrest without warrant — such offences are listed as non-cognizable in Column 2 of the First Schedule to the BNSS.

When a person complains to the police about a non-cognizable offence, the police register a Non-Cognizable Report (NCR) — not an FIR. The complainant is then typically referred to the Magistrate, before whom they must file a private complaint. The Magistrate, upon receiving the private complaint, takes cognisance of the offence, examines the complainant, may issue summons to the accused, and may direct the police to investigate under Section 155(2) BNSS. Without such direction, the police cannot investigate a non-cognizable matter.

Minor offences are typically non-cognizable — for example: assault (simple, without threat to life), defamation, cheating below specified thresholds, mischief causing minor damage. The rationale is that for such offences, the State's power of arrest without warrant and investigation without judicial oversight would be disproportionate and liable to abuse. Non-cognizable classification also gives the accused person more time to respond — the matter must go through a Magistrate before an investigation commences or an arrest warrant is issued.

The practical implications of the non-cognizable classification are: (1) police cannot arrest the accused without a Magistrate's warrant — the accused has more time and notice before any coercive action; (2) the complainant must file a private complaint before the Magistrate — they cannot simply 'give a complaint at the police station' and expect action; (3) the Magistrate has initial control over the proceedings, providing judicial oversight from the outset; and (4) the accused can make applications before the Magistrate at the complaint stage, including challenging the maintainability of the complaint, before the matter reaches trial.

For advocates, the non-cognizable classification is important in civil-criminal overlap situations — many commercial disputes (cheating, criminal breach of trust below specified thresholds, defamation, and nuisance) are non-cognizable. Advising clients who wish to use criminal law as a pressure tool in commercial disputes requires understanding that non-cognizable offences require the private complaint route — and that if the Magistrate refuses to take cognisance (for want of prima facie case), the entire strategy fails. The strategic use of non-cognizable criminal complaints must be weighed against the risk of misuse costs if the complaint is dismissed as frivolous.