Law and You >Procedural Laws > BNSS > Powers of Police With Respect to Non-Cognizable Offence (S. 174 BNSS)
Police are the first agency for the administration of criminal justice and are considered to be the first line of defence against crime. The primary responsibility of Police is to protect life, liberty, and property of citizens. It is for the protection of these rights that the Criminal Justice System has been constituted assigning important responsibility to the Police. They have several duties to perform, the most important among them being the maintenance of Law and order and investigation of offences. The Police Act, 1861, does not define the word “Police” but only says that it shall include all persons who shall be enrolled under this Act. The preamble to the Police Act, 1861 termed police as an “instrument for prevention and detection of crime” including inter alia maintenance of order, peace and tranquillity. Ss. 154 to 196 of Chapter XIII titled “Information to Police and Their Power of Investigation” of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with an investigation by the police. In this article, we shall study Section 174 of the BNSS dealing with powers of police with respect to non-cognizable offences.
Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) outlines the procedure for handling information about non-cognizable offences, requiring police officers to record the information, refer the informant to a Magistrate, and obtain the Magistrate’s order before investigating. This section ensures judicial control over the investigation of less serious, non-cognizable crimes, preventing potential police abuse of power by restricting their ability to investigate without prior permission from a competent Magistrate. While information in cognizable cases having been dealt with in the section 173 BNSS, section 174 BNSS, deals with information in non-cognizable cases.
S. 174 BNSS:
Information as to Non-Cognizable Cases and Investigation of Such Cases:
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf, and,—
(i) refer the informant to the Magistrate;
(ii) forward the daily diary report of all such cases fortnightly to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.
This section comprises of four sub-sections. Section 174(1) BNSS simply empowers the officer-in-charge of a police station to record the information and refer the informant to the Magistrate.
Section 174(2) BNSS expressly prohibits the police officer from investigating a non-cognizable case without the order of a Magistrate.
Section 174(3) BNSS then lays down how the police officer should proceed in the case once he gets the order of the Magistrate. When the Magistrate permits the investigation the power and procedure to be followed in case of investigation is same as that which is followed in cognizable cases. It must be noted here that even if the Magistrate permits the investigation still the police cannot arrest the accused in non-cognizable case without the warrant of arrest. If the Magistrate who is not empowered, erroneously orders in good faith, investigation under section 174 BNSS the proceedings shall not be vitiated merely on that ground [Section 506 (b) BNSS].
Section 174(4) BNSS expressly provides that if one of the offences reported is cognizable and the report relates to two or more offences, then the case must be treated as a cognizable case. That is to say, the powers and duties under section 173 BNSS will be attracted under section 174 BNSS as well.
In Ram Krishna Dalmia v. State, AIR 1958 P&H 172 case, the Court observed that where information is given to the police of a cognizable offence and the case is registered regarding that offence, the investigating officer, while investigating the cognizable offence cannot possibly be debarred from investigating any subsidiary and non-cognizable offence which may arise out of the facts, and can also include these latter cases in his main report under section 173 CrPC (S. 193 BNSS).
Difference between Sections 173 and 174 of BNSS:
Sections 173 and 174 BNSS deal with the information to the police. However, there are following differences between these two sections:
- Section 173 BNSS which deals with cognizable offences, the officer-in-charge of the police station is bound to record the entire information as received by or as given to him. While section 174 BNSS deals with non-cognizable offences, the police shall record the substance of officer such report as is given by the informant and the same has to be referred to the Area Magistrate.
- Under Section 173 BNSS the Police Officer in-charge of a Police Station can start the investigation into the alleged cognizable offence on the basis of the first information received and recorded by him. While under Section 174 BNSS the information received by the Police Officer has to be transmitted to the Magistrate, whose prior order and permission must be obtained by the Police Officer to start the investigation into the offence of a non-cognizable nature.
In V.V. Perumal v. State, 1982 Mad LJ (Cr) 598 case, the Court observed that when an application by the police is made to Magistrate seeking permission to investigate a non-cognizable offence under section 174(2) BNSS, the person against whom the accusation is levelled has no right to intervene and participate in the proceedings. Nor should the Magistrate grant permission to intervene. An accused person does not figure at all in a judicial proceeding till process is issued;.
In K.N.N. Ayyanger v. State, AIR 1954 MB 101 (106) case, the Court held that if the Magistrate had power to grant permission, the permission is not invalidated by reason of reference to an erroneous provision of law. At the most, this would be a mere irregularity not affecting jurisdiction and cannot vitiate the trial or consequent conviction, if it is otherwise good.
Conclusion:
Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) plays a crucial role in distinguishing the procedure for non-cognizable offences from cognizable ones. It ensures that the police do not exercise arbitrary powers in cases of lesser gravity and that the Magistrate’s sanction acts as a safeguard against misuse. By mandating prior approval, the provision balances the interests of justice with the protection of individual rights. Thus, Section 174 BNSS serves as an important mechanism in maintaining accountability, preventing unnecessary harassment, and upholding the rule of law in the criminal justice system.