OFFENCE

[Mr. M. GOVINDARAJAN]

The prime object of the Criminal Law is the protection of the public by the maintenance of law and order. Nobody will deny the great importance of criminal laws for the security of life, property and maintenance of law and order in the State. The Criminal law punishes the wrong doers. The infliction of punishment by law gives definite expression and solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral and popular sanction of morality which is also sanctioned by criminal law. B.A. Wrotely combines moral and legal element in his definition for crime – ‘A crime is an offence against the law, and is usually an offence against morality, against a man’s social duty to his fellow members of society; it renders the offender liable to punishment.

Offences are divided into two categories namely cognizable offences and non cognizable offences. A cognizable offence is an offence for which a police officer may, in accordance with the First Schedule of the Code or under any other law, arrest without warrant. A non cognizable offence is an offence for which a police officer has no authority to arrest without warrant.

The Criminal Procedure Code has not given any test to determine whether a particular offence belongs to cognizable offence or non cognizable offence. It all depends upon whether it is shown as cognizable or non cognizable offence in the First Schedule of the Code. The First Schedule to the code refers to all the offences under the Indian Penal Code and puts them into cognizable offence and non cognizable offence. On perusal of the list of this it may be inferred that the serious offences are considered as cognizable. The seriousness of the offence is to be determined in relation to the maximum punishment provided for the offence. Punishments are provided in the Indian Penal Code for the offences committed by the offenders. Offences under the laws other than the Indian Penal Code which are punishable with imprisonment for three years or more have been shown in the First Schedule as cognizable and those punishable with less than three years have been shown as non-cognizable.

A police officer can arrest the accused person without any warrant or authority issued by a Magistrate in a cognizable offence and he can investigate the case without any orders or directions from a Magistrate. It is the legal duty for the police officer to exercise the above said powers in respect of a cognizable offence. Being the police officer belongs to the government service, it is the ultimate responsibility of the State Government to bring the offender to justice.

A police officer cannot arrest an offender without a warrant in case of a non cognizable offence. He has neither the duty nor the power to investigate into such offences without the authority given by a Judicial Magistrate. The non cognizable offences are considered in the nature of private wrongs. The collection of evidence and the prosecution of the offender are only on the part of the private citizens to initiate the same. However, if a Judicial Magistrate considers it desirable that a non cognizable offence should be investigated into by the police, he can order the police to do so. The Police officer, in such cases, will have all the powers in respect of investigation except the power to arrest without warrant, as he would have exercised if the case were a cognizable one.

Another classification of offence is ‘bailable’ offence and ‘non bailable’ offence. A bailable offence is an offence which is shown in the First Schedule or which is made bailable by any other law. A non bailable offence is an offence other than bailable offence. The Criminal Procedure Code, for this classification also, has not laid down any test to determine whether the particular offence is bailable or non bailable. It is also depending upon whether it has been in the First Schedule as bailable or non bailable. On perusal of the list of bailable and non bailable offence in the First Schedule, it can be inferred that serious offences are considered as non bailable and others as bailable. According to the First Schedule offences under laws other than the Indian Penal Code which are punishable with imprisonment for three years or more, have been considered as non bailable offences and others are considered as bailable offences. If an accused is arrested or detained without warrant he has a right to be released on bail. If the offence is non bailable, the offender shall not be released on bail but he may be released on bail on the discretion of judicial authorities.

The third classification of offence is ‘summon case’ and a ‘warrant case’. A ‘warrant’ case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. A ‘summons’ case is a case relating to an offence and not being a warrant case. The basis of the classification of such offence is the seriousness of the offence to which the case relates. The classification is useful to determine the type of trial procedure to be followed in the case. The trial procedure prescribed for a warrant case is much more elaborate than that provided for a summons case.

Some offences can be compounded. Where the offences are of a private nature and relatively not quire serious, the Code considers it expedient to recognize some of them as compoundable offences and some others as compoundable offences only with the permission of the court. The tables under Sections 320(1) and 320(2) gives the list of offences that can be compounded. The following are the additional rules in respect of compounding of offences:

• When any offence is compoundable under the law the abetment of such offence or an attempt to commit such offence is also compoundable;

• When the person who would otherwise be competent to compound an offence as mentioned in the tables is under the age of 18 or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the court, compound such offence;

• When the person who would otherwise be competent to compound an offence is dead, the legal representative of such person may, with the consent of the court, compound such offence;

• When an accused has been committed for trail or when his appeal against his conviction is pending in an appellate court, the compounding of the offence can be made only with the permission of the court to which the case is committed or the appellate court as the case may be;

• The court of revision may, in the exercise of its revisional powers, allow any person to compound an offence, if such person is under the above said rules competent to compound such offences;

• No office shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.

The following are the other points in respect of compounding:

• The compromise petition once filed in a court cannot be withdrawn;

• A case may be compounded at any time before the sentence is pronounced;

• Once a petition of a real and genuine compromise is filed, composition is complete and effective, and will have the effect of acquittal though no specific order is passed on the petition by the court;