Section 174 of BNSS, 2023 — Information as to Non-Cognizable Cases and Investigation of Such Cases

Introduction

Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed when information relating to a non-cognizable offence is given to the officer in charge of a police station. Unlike a cognizable case, the police do not have an unrestricted power to investigate a non-cognizable offence on their own.

The provision requires the police to record the substance of the information, refer the informant to the Magistrate and forward the daily diary report of such cases to the Magistrate fortnightly. Investigation can begin only after an order from a competent Magistrate. Even after such an order, the police cannot exercise the power to arrest without warrant.

Section 174 largely continues the framework of Section 155 of the Code of Criminal Procedure, 1973 (CrPC), but BNSS introduces an additional requirement concerning the forwarding of daily diary reports to the Magistrate.

Meaning of Non-Cognizable Case

A non-cognizable case is a case in which the police officer does not have the statutory authority to arrest a person without a warrant.

The distinction between cognizable and non-cognizable offences is important because it directly affects the investigative powers of the police.

In a cognizable case, the police can ordinarily investigate without first obtaining an order from a Magistrate. In a non-cognizable case, Section 174 places judicial control over the commencement of investigation.

Thus, Section 174 operates as a procedural safeguard against an unrestricted police investigation into offences for which the police do not possess the power of arrest without warrant.

Statutory Basis

Section 174 contains four principal rules:

1. Recording of information relating to a non-cognizable offence.
2. Reference of the informant to the Magistrate and fortnightly forwarding of the daily diary report.
3. Requirement of a Magistrate’s order before investigation.
4. Treatment of a case involving both cognizable and non-cognizable offences as a cognizable case.

Object and Purpose

The main purpose of Section 174 is to maintain a distinction between the investigative powers available in cognizable and non-cognizable cases.

The provision seeks to ensure that:

• information regarding non-cognizable offences is formally recorded;
• the informant is directed to the Magistrate;
• the Magistrate exercises supervision before police investigation begins;
• police investigation is permitted after judicial authorisation;
• the police cannot use the power of arrest without warrant merely because investigation has been authorised; and
• cases involving both cognizable and non-cognizable offences can be investigated under the procedure applicable to cognizable cases.

The provision therefore balances the interests of the complainant with protection against unnecessary or unauthorised police investigation.

Essential Elements of Section 174

1. Information Relating to a Non-Cognizable Offence

When information is given to the officer in charge of a police station regarding the commission of a non-cognizable offence within the limits of that police station, the officer has a statutory duty to record the substance of the information.

The information is entered in a book maintained by the police officer in the form prescribed by the State Government through rules.

The police cannot simply ignore the information merely because the offence is non-cognizable.

2. Reference of the Informant to the Magistrate

After recording the information, the police officer must refer the informant to the Magistrate.

This is significant because investigation of a non-cognizable offence cannot ordinarily commence merely on the initiative of the police.

The Magistrate acts as the judicial authority who can authorise investigation in accordance with Section 174(2).

3. Fortnightly Daily Diary Report

Section 174(1)(ii) introduces an additional requirement that did not form part of the corresponding Section 155 of the CrPC in the same form.

The police must forward the daily diary report of all such cases fortnightly to the Magistrate.

This requirement strengthens judicial oversight over non-cognizable cases and enables the Magistrate to remain informed about such matters even though police investigation does not automatically commence.

4. Magistrate’s Order for Investigation

Section 174(2) provides the central restriction on police investigation.

A police officer cannot investigate a non-cognizable case without an order of a Magistrate who has the power to try the case or commit it for trial.

Therefore, the mere recording of information does not give the police authority to commence investigation.

The Magistrate’s order is a necessary statutory condition for investigation.

5. Powers of Police After Magistrate’s Order

Once the competent Magistrate has passed an order permitting investigation, the police officer may exercise the same investigative powers that an officer in charge of a police station may exercise in a cognizable case.

However, there is an important limitation.

The police officer cannot exercise the power to arrest without warrant.

Therefore, authorisation to investigate does not convert the non-cognizable offence into an offence for which the police acquire the power of arrest without warrant.

6. Mixed Cases Containing Cognizable and Non-Cognizable Offences

Section 174(4) deals with cases involving more than one offence.

Where a case relates to two or more offences and at least one of those offences is cognizable, the entire case is deemed to be a cognizable case.

This remains so even though the other offences involved are non-cognizable.

The provision prevents the investigation from being artificially divided merely because some offences are cognizable while others are non-cognizable.

Procedure under Section 174

The procedure can be understood in the following sequence:

Step 1: Information is given to the police

Information concerning a non-cognizable offence is given to the officer in charge of the police station having territorial jurisdiction.

Step 2: Police record the information

The officer records or causes to be recorded the substance of the information in the prescribed book.

Step 3: Informant is referred to the Magistrate

The informant is referred to the Magistrate.

Step 4: Daily diary report is forwarded

The police forward the daily diary report of all such cases to the Magistrate fortnightly.

Step 5: Magistrate considers the matter

If investigation is sought, the competent Magistrate may pass an order authorising the police to investigate.

Step 6: Investigation begins

After receiving the Magistrate’s order, the police may conduct investigation using the investigative powers available in a cognizable case.

Step 7: Limitation on arrest

Even after receiving the Magistrate’s order, the police do not acquire the power to arrest without warrant merely by virtue of Section 174(3).

Powers of the Police

The police have limited powers in relation to a non-cognizable case.

Before a Magistrate’s order, the police may record the information and perform the duties specifically prescribed by Section 174. They cannot independently investigate the case.

After receiving the Magistrate’s order, the investigating police officer can exercise the same investigative powers available in a cognizable case, except the power to arrest without warrant.

The distinction is therefore between the power to investigate and the power to arrest. Authorisation to investigate does not automatically confer a power of arrest without warrant.

Role of the Magistrate

The Magistrate has an important supervisory role under Section 174.

The Magistrate:

• receives the informant when referred by the police;
• receives the fortnightly daily diary reports;
• has the authority to order investigation of a non-cognizable case; and
• must be a Magistrate having power to try the case or commit it for trial.

The requirement of a Magistrate’s order ensures that police investigation in a non-cognizable case is subject to judicial authorisation.

Rights and Protection of the Informant

The informant cannot be treated as having no remedy merely because the offence is non-cognizable.

The information must be recorded in the prescribed manner, and the informant must be referred to the competent Magistrate.

The Magistrate’s involvement provides a judicial avenue through which investigation may be authorised.

Important Limitation: No Arrest Without Warrant

One of the most important points for examination purposes is contained in Section 174(3).

Even after the Magistrate authorises investigation, the police officer cannot exercise the power of arrest without warrant.

This means that two questions must be kept separate:

Can the police investigate?
Yes, after obtaining the Magistrate’s order.

Can the police arrest without warrant merely because investigation has been authorised?
No.

Mixed Cognizable and Non-Cognizable Offences

Section 174(4) provides a practical solution where several offences arise from the same case.

Suppose a complaint alleges:

• one cognizable offence; and
• one non-cognizable offence.

Because at least one offence is cognizable, the case is treated as a cognizable case for the purposes of the provision.

The presence of the non-cognizable offence does not prevent the police from proceeding according to the procedure applicable to a cognizable case.

Example

A person is alleged to have committed two offences arising from the same incident. Offence A is cognizable, while Offence B is non-cognizable.

Since at least one of the offences is cognizable, Section 174(4) treats the case as a cognizable case. The police do not have to obtain a separate Magistrate’s order merely to investigate the non-cognizable offence forming part of the same case.

Section 174 and CrPC Section 155

Section 174 of BNSS corresponds substantially to Section 155 of the CrPC.

The basic framework continues:

• information concerning a non-cognizable offence is recorded;
• the informant is referred to the Magistrate;
• police investigation requires a Magistrate’s order;
• after such an order, police have investigative powers similar to those available in a cognizable case, except arrest without warrant; and
• where multiple offences are involved and at least one is cognizable, the case is treated as cognizable.

Important Change under BNSS

The significant addition in Section 174(1)(ii) is the requirement that the police forward the daily diary report of all such cases fortnightly to the Magistrate.

This adds an element of continuing judicial oversight over non-cognizable cases.

Therefore, while the core investigative framework has been retained from the CrPC, BNSS strengthens the reporting mechanism by expressly requiring fortnightly forwarding of the relevant daily diary reports.

Important Distinctions

Cognizable Case and Non-Cognizable Case

In a cognizable case, the police ordinarily have the power to investigate without a prior Magistrate’s order and may possess the power to arrest without warrant as provided by law.

In a non-cognizable case, police investigation requires a Magistrate’s order, and Section 174(3) expressly excludes the power of arrest without warrant.

Recording Information and Investigation

Recording information does not itself amount to authorisation to investigate.

Under Section 174, the police must first record the information and refer the informant to the Magistrate. Investigation can commence only after the required Magistrate’s order.

Investigation and Arrest

Investigation and arrest are separate powers.

A Magistrate’s order under Section 174(2) authorises investigation, but Section 174(3) expressly excludes the power to arrest without warrant.

Non-Cognizable Offence and Mixed Case

A purely non-cognizable case requires a Magistrate’s order before police investigation.

However, where a case involves two or more offences and at least one is cognizable, Section 174(4) treats the entire case as cognizable.

Case Law

Madhu Bala v. Suresh Kumar

This Supreme Court decision was concerned with the statutory scheme governing investigation of non-cognizable offences under the CrPC.

The Court recognised the importance of the Magistrate’s role in authorising investigation where the law requires such judicial permission.

The decision is relevant to Section 174 because the corresponding BNSS provision substantially retains the CrPC framework concerning the requirement of a Magistrate’s order before investigation of a non-cognizable offence.

Since the judgment was decided under the CrPC, it should be applied to BNSS only to the extent that the statutory language and legal framework remain substantially similar.

Prasanth K.S. v. State of Kerala

The Kerala High Court considered Section 174 of the BNSS in the context of its relationship with the corresponding CrPC provision. The Court treated Section 174 as substantially corresponding to Section 155 of the CrPC.

The decision illustrates the continuing relevance of established CrPC principles while courts develop the interpretation of the new BNSS provisions.

Judicial interpretation of Section 174 is still developing, and decisions under the CrPC should therefore be applied carefully where BNSS has introduced changes.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) defines and prescribes punishments for criminal offences.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural framework for dealing with those offences.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 174 is therefore concerned with the procedural handling and investigation of non-cognizable offences, rather than defining the offences themselves or determining their evidentiary value.

Common Confusions

Can police investigate a non-cognizable offence on their own?

No.

Under Section 174(2), police investigation requires an order from the competent Magistrate.

Can the police refuse to record information merely because the offence is non-cognizable?

No.

The officer must enter or cause to be entered the substance of the information in the prescribed book and refer the informant to the Magistrate.

Does a Magistrate’s order give the police power to arrest without warrant?

No.

Section 174(3) specifically excludes the power to arrest without warrant.

What happens when one offence is cognizable and another is non-cognizable?

If a case relates to two or more offences and at least one is cognizable, Section 174(4) treats the case as a cognizable case.

Is Section 174 the same as CrPC Section 174?

No.

This is an important numbering confusion.

BNSS Section 174 corresponds broadly to CrPC Section 155, which dealt with information concerning non-cognizable offences and investigation of such cases.

CrPC Section 174 dealt with a different subject, namely police inquiry into certain cases of unnatural or suspicious death.

Important BNSS Provisions

• Section 174(1) — Recording information concerning non-cognizable offences, referring the informant to the Magistrate and forwarding daily diary reports fortnightly.
• Section 174(2) — Prohibition on police investigation without a Magistrate’s order.
• Section 174(3) — Investigative powers after the Magistrate’s order, subject to the restriction on arrest without warrant.
• Section 174(4) — Treatment of a case involving at least one cognizable offence as a cognizable case.
• Section 175 — Police officer’s power to investigate cognizable cases.

Topic at a Glance

• Topic: Information as to non-cognizable cases and investigation of such cases
• BNSS Section: Section 174
• Corresponding CrPC provision: Section 155
• Primary rule: Police cannot investigate a non-cognizable case without a Magistrate’s order.
• Recording: Information must be entered in the prescribed book.
• Informant: Must be referred to the Magistrate.
• New BNSS requirement: Daily diary reports of such cases must be forwarded to the Magistrate fortnightly.
• Investigation after order: Police may exercise investigative powers similar to those available in a cognizable case.
• Arrest: Police cannot arrest without warrant merely under Section 174(3).
• Mixed offences: If at least one of two or more offences is cognizable, the case is treated as cognizable.

Quick Revision

• Section 174 BNSS deals with non-cognizable cases.
• It substantially corresponds to Section 155 CrPC, not Section 174 CrPC.
• Information about a non-cognizable offence must be recorded by the police.
• The informant must be referred to the Magistrate.
• The police must forward the daily diary report of such cases to the Magistrate fortnightly.
• Police cannot investigate a non-cognizable case without an order of the competent Magistrate.
• After receiving the order, the police may exercise investigative powers similar to those in a cognizable case.
• The police still cannot arrest without warrant under Section 174(3).
• If a case involves two or more offences and at least one is cognizable, the entire case is treated as cognizable.
• The major BNSS change is the express requirement of fortnightly forwarding of daily diary reports to the Magistrate.
• Section 174 is primarily a provision of judicial control over police investigation of non-cognizable offences.

ALSO READ: Section 175 – Police officer’s power to investigate cognizable case

Conclusion

Section 174 of the BNSS preserves the basic principle that investigation of a non-cognizable offence requires judicial authorisation. The police must record the information and refer the informant to the Magistrate, while the Magistrate provides the necessary authority for investigation. Even after such authorisation, the power to arrest without warrant remains excluded.

The most notable procedural addition under BNSS is the requirement to forward the daily diary report of non-cognizable cases to the Magistrate every fortnight. Section 174 therefore combines the traditional CrPC framework with a strengthened mechanism of judicial oversight.