The law relating to criminal procedure applicable to all criminal proceedings in India is contained in the Code of Criminal Procedure, 1972 (Code). The Code is an Act to consolidate and amend the law relating to Criminal Procedure. The ‘Cognizable and Non-cognizable Offences’ have been categorised under the Code as cognizable and non-cognizable offence.
It is stated that Section 2(n) of the Code defines offence as “any act or omission made punishable by any law for the time being in force”. Further, Section 40 of the Indian Penal Code (“IPC”) defines offence as “to denote a thing made punishable under the Code”. Therefore, to constitute an offence, the particular ‘act’ should be specifically made punishable under the Code or any other law. So, an act which has not been made punishable expressly under any law, is not termed as an offence.
As per Section 2(c) of the Code- “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.
It is submitted that there is no guideline under the Code to determine a particular offence is ‘Cognizable or non-cognizable’. But the Code contains the ‘First Schedule’ which refers to all the offences under the IPC and puts them into ‘Cognizable and Non-cognizable categories’. It is to be noted that ‘Cognizable Offences’ are serious offences. It is stated that the seriousness of any offence leads for maximum punishment. The ‘First Schedule’ contains offences under the laws other than the IPC which are punishable with imprisonment for three years or more.
Furthermore, Section 154 of the Code provides that every information relating to the commission of a ‘Cognizable Offence’, the Police Officer shall enter the substance of the information in a book to be kept by him in this regard.
As per Section 2(i) of the Code- “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.
It can be said that such offences are minimal offences where the injury done to the society is comparatively small. The aggrieved party expected to file a complaint before criminal proceedings starts. The non-cognizable offences contain more private wrong.
In background of above, it is submitted that if there is ‘Cognizable Offence’, the police can arrest a person without any warrant. While, in case of ‘Non-cognizable Offence’, a warrant must be needed for arrest of person.
Cognizable and Non-Cognizable Offence Under Companies Act, 2013
It is submitted that there are certain offences under the Companies Act, 2013 (“the Act, 2013”) at par with ‘criminal offences’ as provided under the Code. The Act, 2013 has identified the offences as
- Non-cognizable;
- Cognizable;
Section 439 of the Act, 2013 clearly mention that all offences, except section 212(6), under the Act, 2013 shall be deemed to be ‘Non-cognizable’ within the meaning of the said Code.
“439. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act except the offences referred to in sub-section (6) of section 212 shall be deemed to be non-cognizable within the meaning of the said Code.”
After perusal of the Section 439 of the Act, 2013, it is clear that the offences whether the same is ‘Cognizable or Non-cognizable’ shall be deemed as ‘Cognizable or Non-cognizable’ within the meaning of the Code. The Section 439 of the Act, 2013 starts with the non obstante clause, i.e., notwithstanding anything contained in the Code of Criminal Procedure, 1973. A non obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non-obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clause.
It means to check whether any offence under the Act, 2013 is a ‘Cognizable or Non-cognizable’, the provisions of Section 439 and Section 212(6) shall prevail over the Code and do not require to see Code to identify whether offence is ‘Cognizable or Non-cognizable’. Section 439 of the Act, 2013 has already cleared that all offences are non-cognizable except Section 212(6). It means police officer cannot arrest any director or its officer in any offence under the Act, 2013 except section 212(6). It is only section 212(6) under which a police officer may arrest promoter, directors or the officer of the company without any warrant.
Cognizable offence under the Companies Act, 2013.
212(6). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), offence covered under section 447 of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless-
(i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) Where the Public Prosecutor opposes the applications, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court do direct.
Provided further that the Special Court shall not take cognizance of any offence referred to in this sub-section except upon a complaint in writing made by-
(i) The Director, Serious Fraud Investigation Office; or
(ii) Any officer of the Central Government auhtorised, by a general or special order in writing in this behalf by that Government.”
It is submitted that the Section 212(6) is also starts with the non obstante clause, i.e., notwithstanding anything contained in the Code of Criminal Procedure, 1973. Thus, the limitation aforesaid on grant of bail is in addition to the limitation under the Code or under any other law for the time being in force.
Bailable and non-bailable offence under the Code.
The Code does not contain provisions relating to determination of whether a particular offence can be categorized as ‘bailable and non-bailable’. As per section 2(a) of the Code a “bailable offence” is an offence (i) which is shown as bailable in the First Schedule of the Code, or (ii) which is made bailable by any other law for the time being in force.
“Section 2(a). “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.”
These offences primarily constitute less serious offences, where bail can be claimed as matter of right and is granted by police officer in due course. Any other offence apart from those mentioned as bailable is “non-bailable.” The ‘First Schedule’ of the Code infers that the offences that are punishable with imprisonment of less than three years are usually considered as bailable. Any other offence, apart from those offences mentioned as bailable, is considered to be non-bailable. In other words, offences punishable with imprisonment for three years or more are usually considered as non-bailable.
Under non-bailable offences, bail cannot be claimed as a matter of right. This, however, does not mean that there can be no bail for such offences. It simply means that grant of bail for such offences are purely at the discretion of the court. The court after recording reasons, may release an accused on bail. However, persons accused of offences punishable with death, life imprisonment or imprisonment for seven years or more can be released on bail, only after giving an opportunity of hearing to the public prosecutor.
Bailable and non-bailable offence under the Companies Act, 2013
The Act, 2013 also does not contain provisions relating to determination of whether a particular offence can be categorized as bailable and non-bailable. As mentioned above, it is only section 212(6) of the Act, 2013 which provides the offence as Cognizable Offence in which a police officer may arrest promoter, directors or the officer of the company without any warrant. Therefore, person arrested shall be released on bail. It is again submitted that the Section 212(6) is starts with the non obstante clause, i.e., notwithstanding anything contained in the Code of Criminal Procedure, 1973. Thus, the limitation aforesaid on grant of bail is in addition to the limitation under the Code or under any other law for the time being in force.
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Disclaimer: Nothing contained in this document is to be construed as a legal opinion or view of either of the authors whatsoever and the content is to be used strictly for educative purposes only.
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