Criminal Procedure is included in the List III (Concurrent List) of the Indian Constitution as item 2.
Hence though Cr.P.C. as such was passed by the Parliament, it is open to the States to amend its provisions if such amendments are found necessary.
“Offence” is defined in Section 2(n) as “any act or omission made punishable by any law for the time being in force.” Offences are classified as (i) bailable and non-bailable offences (ii) cognizable and non-cognizable offences.
Schedule I to the Criminal Procedure Code mentions whether a particular offence is cognizable or non-cognizable or whether it is bailable or non-bailable.
In the case of a bailable offence the person arrested has a right to be released on bail even by the Police Officer who effects the arrest on his furnishing the required security.
This is evident from Section 436. But in the case of a non-bailable offence the Police Officer making the arrest is not competent to grant bail and the arrested person has to be produced before a Court of Law within 24 hours after arrest. It is only the Magistrate before whom the arrested person is produced that is competent to grant bail in the case of non-bailable offences. This is clear from Section 437.
A Cognizable offence is one for which a Police Officer may arrest the offender even without a warrant of arrest being issued by a Court.
Section 41 deals with cases where a Police Officer may arrest a person even without an order from a Magistrate and without a warrant. Generally such arrests are made pending investigation.
In the case of a non-cognizable offence, a Police Officer has no authority to arrest the suspect or offender without a warrant of arrest duly issued by a Court of Law.
The question of a Court issuing a warrant of arrest arises only when a case is brought before the Court. The difference between a cognizable and non-cognizable offence assumes importance when the competency of a Police Officer to conduct investigation and lay a charge-sheet arises for consideration.
Normally a Police Officer should not investigate into a non-cognizable offence and lay charge-sheet relating to such an offence. [Refer to Section 2(c) and (1)].
A Complaint is an allegation made to a Magistrate regarding the commission of an offence. It is defined in Section 2(d). It may be either oral or in writing. It may be against a known person or against an unknown person but it should be made only to a Magistrate and regarding the commission of an offence, so that the Magistrate may take the necessary action.
A complaint has to be differentiated from a charge-sheet. A charge sheet is a report submitted by the Police Officer under Section 173(2) after completion of investigation before a Magistrate who is competent to take cognizance of offence.
It mentions all the relevant particulars such as the names of the accused, the details of the offence and the nature of the evidence proposed to be placed before the Court. No doubt all these details are also contained in a complaint, but the difference between a complaint and a charge-sheet is that a charge-sheet is laid only by a Police Officer who has investigated into an offence, whereas a complaint may be filed even by a private party.
A charge-sheet is bound to be in writing, whereas a complaint may be oral or written. In the case of a charge-sheet the identity of the offender is known, whereas a complaint may be against a known or an unknown person. It should be remembered that the expression “charge-sheet” is not used in the Code. In North Indian States, the word ‘challan’ is used as synonymous with ‘charge-sheet’.
Both mean the same thing and they are covered by Section 173(2). The difference between a complaint and a charge-sheet is of vital importance since it has a direct bearing on the procedure to be adopted by the Court at the time of the inquiry or trial.
One type of procedure is prescribed in the case of complaints which are also commonly known as private complaints, whereas a different kind of procedure is prescribed in the case of charge-sheets.
If a Police Officer investigates into a non- cognizable case or non-cognizable offence and lays a report before the Court, such a report cannot be treated as a charge-sheet filed under Section 173(2) but it has to be treated only as a private complaint and dealt with accordingly.
Investigation means all the steps taken by a police officer to detect the commission of an offence and fix the responsibility on the offender. Investigation commences when a police officer starts necessary proceedings for the collection of evidence to establish the guilt of the offender.
It concludes with the laying of the charge-sheet. A police officer may commence investigation on his own accord or on the basis of other information received by him regarding the commission of a cognizable offence.
Investigation is different from inquiry. Investigation is done by the police officer, whereas inquiry is conducted by a Magistrate. In proceedings relating to warrant procedure cases there are two distinct stages.
The first stage is known as inquiry and the second stage is known as trial. Inquiry starts when the Magistrate who receives a complaint or charge-sheet takes cognizance of an offence and it comes to a close with the framing of a charge.
Inquiry may even end in discharge of the accused in which case no charge will be framed and there will be no trial [for details see Trial of Warrant cases on Private Complaint].
The second stage called trial begins with the framing of the charge after inquiry and ends with the pronouncing of the judgment, whether it is a judgment of conviction or acquittal.
In the case of offences which are triable by summons procedure there will not be any inquiry and trial starts with the Magistrate taking cognizance of the offence and ends with the disposal of the case. All offences which are punishable with death, imprisonment for life or imprisonment for a term exceeding two years shall be triable as warrant cases. All other offences are triable by summons procedure and they are called summons cases.
Sometimes in the course of the same transaction several offences might have been committed, some of which are triable by summons procedure and some by warrant procedure.
For example rioting armed with a deadly weapon punishable under Section 148 I.P.C. which is a warrant case and simple hurt punishable under Section 323 I.P.C. which is a summons case. In such a case only warrant procedure should be adopted for the trial of all offences. It will not be irregular if a summons case is tried by warrant procedure.
But the entire trial would be vitiated and becomes irregular if a warrant case is tried by summons procedure.