Bharatiya Nagarik Suraksha Sanhita, 2023
Section 174
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.
Why this exists
This provision continues the long-standing scheme (originally Section 155 of the Code of Criminal Procedure, 1973, itself descended from the 1898 Code) that divides offences into 'cognizable' (serious, allowing immediate police arrest and investigation) and 'non-cognizable' (less serious, requiring judicial oversight before police act). The idea is to prevent police overreach into minor disputes — such as simple hurt, defamation, or public nuisance — by requiring a Magistrate's permission before an investigation begins, while still keeping a record of every complaint so nothing is lost or ignored.
How courts read it
Under the predecessor Section 155 CrPC, courts consistently held that police investigation into a purely non-cognizable offence without a Magistrate's order is illegal, and any evidence gathered through such an unauthorized investigation may be excluded or treated with caution, though it does not automatically vitiate the trial. Courts also clarified that when a single FIR discloses both cognizable and non-cognizable offences, the presence of even one cognizable offence lets police investigate the whole matter freely (the principle now codified as sub-section (4)). No Supreme Court ruling has yet interpreted the renumbered BNSS provision specifically, since it restates existing law.
Common misconceptions
- Myth: Police can refuse to even record a complaint about a non-cognizable offence.
Fact: The law requires police to note down the complaint in the station diary regardless of whether the offence is cognizable or non-cognizable; they just can't investigate without a Magistrate's order. - Myth: Once a Magistrate allows investigation into a non-cognizable case, police get full powers including arrest without warrant.
Fact: Even after the Magistrate's order, the law specifically denies police the power to arrest without a warrant in such cases.