Criminal Defence
Bail in NDPS Cases in Uttar Pradesh
Bail in NDPS cases: how Section 37 raises the bar for commercial-quantity offences, how the Sessions Court applies it, and what Section 50 means for defence.
Cognizable vs Non-Cognizable Offences in India — BNSS Guide
A cognizable offence is one where a police officer may arrest without a warrant and must register an FIR on complaint. A non-cognizable offence requires the police to obtain a Magistrate's order before investigating. The distinction is fixed by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023.
Why the classification matters
Whether a reported offence is cognizable or non-cognizable is the first legal question that determines everything else about how a police complaint proceeds. It settles:
- Whether the police must register an FIR or may merely record an NCR
- Whether the police may arrest without a warrant
- Whether investigation may begin immediately or requires a court order
- Whether the complaint is better routed through the police or directly to a Magistrate
The classification is not a matter of police discretion. It is fixed by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — the same table that was carried forward from the First Schedule to the Criminal Procedure Code.
What is a cognizable offence?
Section 2(1)(d) BNSS defines a cognizable offence as one in which a police officer may arrest without a warrant, as specified in the First Schedule or by any other law in force.
Three consequences follow for every cognizable offence:
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The FIR must be registered. The Supreme Court held in Lalita Kumari v. Government of Uttar Pradesh (2013) that registration of an FIR on receipt of information disclosing a cognizable offence is mandatory, not discretionary. The police may conduct a brief preliminary inquiry in limited categories — matrimonial disputes, commercial offences, medical negligence — before registering, but they may not refuse outright. If they do refuse, the remedies are set out in Section 173(4) BNSS.
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The police may arrest without a warrant, subject to the safeguards in Section 35 BNSS. For offences punishable with up to seven years’ imprisonment, the officer must first issue a notice to appear rather than arrest immediately — following the Supreme Court’s direction in Arnesh Kumar v. State of Bihar (2014). The accused may apply for anticipatory bail the moment there is a reasonable apprehension of arrest.
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Investigation proceeds as of right under Section 176 BNSS — no Magistrate’s order is needed before the investigating officer begins.
What is a non-cognizable offence?
Section 2(1)(l) BNSS defines a non-cognizable offence as one in which a police officer has no authority to arrest without a warrant.
For a non-cognizable offence:
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The police record an NCR. When the complaint discloses only a non-cognizable offence, the police enter it in the Non-Cognizable Register. This is not an FIR and carries no automatic right of investigation.
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Arrest requires a warrant. The police cannot arrest the accused without first obtaining a warrant from the Magistrate.
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Investigation requires a Magistrate’s order. Under Section 175 BNSS the police officer must report the matter to the Magistrate and obtain an order to investigate. Only after that order is passed may investigation begin.
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The complainant may go directly to the Magistrate. A complaint may be filed before the Magistrate under Section 223 BNSS, who may take cognizance independently of the police process.
Examples from the First Schedule (BNS 2023)
| Offence | BNS section | Old IPC | Cognizable? | Bailable? |
|---|---|---|---|---|
| Murder | s.103 | s.302 | Yes | No |
| Culpable homicide not amounting to murder | s.101 | s.304 | Yes | No |
| Rape | s.63 | s.376 | Yes | No |
| Dacoity | s.311 | s.395 | Yes | No |
| Robbery | s.310 | s.392 | Yes | No |
| Theft | s.303 | s.379 | Yes | No |
| Cruelty to wife | s.85 | s.498A | Yes | No |
| Hurt (simple) | s.115(2) | s.323 | Yes | Yes |
| Grievous hurt | s.117(2) | s.325 | Yes | Yes |
| Cheating (above threshold) | s.318(4) | s.420 | Yes | No |
| Cheating (below threshold) | s.318(2) | s.417 | No | Yes |
| Assault without result of hurt | s.131 | s.352 | No | Yes |
| Defamation | s.356(2) | s.500 | No | Yes |
| Criminal intimidation | s.351(2) | s.506 (part) | No | Yes |
The table is illustrative, not exhaustive. The First Schedule is the authoritative source, and some offences depend on the factual variant charged or the quantum of harm alleged.
FIR versus NCR — the practical difference
| FIR | NCR | |
|---|---|---|
| When recorded | Cognizable offence reported | Non-cognizable offence reported |
| Legal basis | Section 173 BNSS | Section 175 BNSS |
| Triggers investigation | Immediately, as of right | Only after Magistrate’s order |
| Arrest without warrant | Permitted (subject to safeguards) | Not permitted |
| Copy to complainant | Mandatory, at once | Not automatically |
| Complainant’s alternative | — | Complaint before Magistrate under s.223 BNSS |
Cognizable and non-bailable are not the same thing
These two classifications are often confused. They are answered by different columns in the First Schedule, and checking only one produces wrong advice.
- Cognizable / non-cognizable: can the police arrest without a warrant?
- Bailable / non-bailable: does the arrested person have a right to bail?
Simple hurt under BNS Section 115(2) (old IPC Section 323) is cognizable and bailable: the police may arrest without a warrant, but the person arrested has a right to bail at the police station. Cheating involving a large amount under BNS Section 318(4) (old IPC Section 420) is cognizable and non-bailable: the police may arrest, and bail is at the court’s discretion, not the accused’s right.
Knowing both columns matters in practice — whether to advise someone to apply for anticipatory bail before surrender, or to seek bail at the station after arrest, turns on the bailable column, not the cognizable one.
What to do when police refuse to register an FIR
If the complaint discloses a cognizable offence and the police are refusing to register an FIR, the available options under Section 173(4) BNSS are:
- Apply by written complaint to the Superintendent of Police
- File a complaint before the Judicial Magistrate under Section 175(3) BNSS, who may direct the officer-in-charge to register the FIR
- Move the High Court under Section 528 BNSS
The detailed procedure is set out in the guide: What to do when police refuse to register an FIR.
Related
Frequently asked questions
What is a cognizable offence under the BNSS?
Section 2(1)(d) BNSS defines a cognizable offence as one in which a police officer may arrest without a warrant, as listed in the First Schedule. For such offences the police must register an FIR on receiving information, and may investigate without a court order. Examples include murder (BNS s.103), robbery (BNS s.310), and cruelty to wife (BNS s.85).
What is a non-cognizable offence?
Section 2(1)(l) BNSS defines a non-cognizable offence as one in which a police officer has no authority to arrest without a warrant. The police record an NCR (Non-Cognizable Report) rather than an FIR, and may not investigate without an order from the Magistrate under Section 175 BNSS. Common examples are simple assault (BNS s.131), cheating below the prescribed threshold (BNS s.318(2)), and defamation (BNS s.356(2)).
What is an NCR and how is it different from an FIR?
An NCR (Non-Cognizable Report) is the entry police make when a complaint discloses only a non-cognizable offence. No investigation follows automatically; a Magistrate's order under Section 175 BNSS is required first. An FIR under Section 173 BNSS, by contrast, triggers an immediate right to investigate and permits arrest without a warrant. Insisting on an FIR for a non-cognizable offence is not legally correct, and the police are entitled to decline.
Are cognizable and non-bailable the same thing?
No — cognizability and bailability are two separate columns in the First Schedule and must each be checked independently. An offence can be cognizable yet bailable (simple hurt under BNS s.115(2) is cognizable and bailable), or non-cognizable yet non-bailable in certain special statutes. Treating them as one category is a common mistake with real consequences for advice on arrest and bail.
What can I do if I want to complain about a non-cognizable offence?
Two routes are available. First, ask the police to record an NCR and then approach the Magistrate for an order to investigate under Section 175 BNSS. Second, file a complaint directly before the Magistrate under Section 223 BNSS; the Magistrate takes cognizance and may direct investigation or issue process. The second route is often more direct for disputes that are non-cognizable but genuinely serious.
How do I know which category my complaint falls into?
The First Schedule to the BNSS lists every BNS offence, its cognizability, and whether it is bailable or non-bailable. A lawyer with familiarity of the Schedule can identify the category from the facts at a first consultation. The same classification appears in the First Schedule to the Bharatiya Nyaya Sanhita (BNS) alongside each offence's punishment.