Editorial Notes

[Editorial Notes] In pursuit of an ideal criminal process

It is time to rethink the power of arrest and the concept of cognisable offences.
By IASToppers
October 05, 2019


  • Introduction
  • Cognisable offences
  • Non-cognisable offences
  • Conclusion

In pursuit of an ideal criminal process

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  • The law on criminal process need to empower police to arrest persons who are probable suspects and at the same time should have restriction against arbitrarily arresting people who are not probable crime suspects.
  • Such a restriction can be taken from the right of individuals against arbitrary intrusions into their lives by the law enforcement as recognised in Puttaswamy v. Union of India (2017).
  • The Supreme Court held that privacy is essential for protecting personal liberty as it allows us to define ourselves and our relations to others.


  • However, it is not enough to merely recognise a right of individuals, and a corresponding restriction on the power of the police. The restriction must also serve to deter the police from intruding arbitrarily into the private lives of individuals.

Cognisable offences

  • In cognizable offences, an officer can take arrest a suspect without seeking a court’s warrant to do so, if police believe that the person has committed the offence and is satisfied that the arrest is necessary on certain enumerated bases.


  • Within 24 hours of the arrest, the officer must have any further detention of the arrested person ratified by a judicial magistrate.

How would officers make the decision on whether to arrest someone?

  • Policy officers must first weigh the probability of a person having engaged in the criminalised conduct.
  • Then, they must assess if the conduct in question is really an offence or not. However, this assessment is when the offence criminalises conduct for constituting the harm.

Hands in Handcuffs

  • For instance, the offence of murder constitutes the harm of loss of life and the police officer can decide whether the loss of life resulted from the intentional conduct of the accused.
  • However, it is a harder question to answer whether the suspect’s conduct will result in or cause harm as a downstream effect.
  • The problem is that there is no restriction on the powers of the police that stop them from arresting based on an error in answering whether suspect’s cause will result in harm.
  • The mistaken arrest of innocent person by police can result from unrestrained policing which can be generated by an intention of causing hatred or excite disaffection against the government or promote enmity between religious groups.
  • Therefore, it is unclear what parameters can be employed by the judicial magistrate in deciding whether to remand the accused person to further custody for investigating the acts of the accused.


  • The police should use judgments of the Supreme Court to determine whether to arrest a suspected person or not in certain cases.
  • For instance, the definition of sedition was read down in Kedarnath Singh v. Bihar (1962) to encompass only speech or conduct that can “incite violence” or “involves the intention or tendency to create disorder”.
  • Thus, an officer examining a sedition FIR needs can use this order before taking cognisance of the offence.

Non-cognisable offences

  • A non-cognisable offence would need officers to approach a court for a warrant before they can arrest a suspect.


  • It is unclear why some offences are non-cognisable. One rationale proposed by some courts is that grave and serious offences are cognisable.
  • However, the Malimath Committee in 2003 said that many serious offences like public servants disobeying the law to cause injury to any person; bribery during election; buying or disposing of any person as a slave; cheating; mischief; and criminal intimidation were non-cognisable.
  • The 177th Law Commission Report states that cognisable offences are those that require immediate arrest. However, Part B of the Schedule comprising cognisable offences in the Code of Criminal Procedure (CrPC) carries several offences that do not necessitate immediate arrest, such as making unauthorised constructions.
  • This raises questions about the rationale behind why some offences are cognizable.
  • Multiple judgments of the supreme court such as Joginder Kumar (1994), DK Basu (1997) as well as Law Commission Reports (154th, 177th) criticized the wide powers of arrest for cognisable offences.
  • This led to the Code of Criminal Procedure (Amendment) Act, 2008 which restricted the power to arrest, to persons against whom a reasonable complaint or credible information is received, of having committed a cognisable offence. Even after this amendment, CrPC neither prevents arbitrary arrests, nor discourage arbitrary arrests.


  • A code that does not compel the police to constantly be accountable to individual liberty and the Constitution is merely a police procedure manual.
  • An arrest of innocent person would curtail not only the arrested person’s freedom to engage in speech and conduct, but also his/her liberty against arbitrary arrest.
  • For the CrPC to truly realise criminal justice, government have to redefine the very concept of a cognisable offence.


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