Report No. 177

Part III

Proposals to Amend The Code of Criminal Procedure, 1973

3.1 The Code of Criminal Procedure classifies the offences mentioned in the IPC into four broad categories, namely, (1) bailable and non-cognizable offences; (2) bailable and cognizable offences; (3) non-bailable-cognizable offences and (4) non-bailable-noncognizable offences (e.g., sections 466, 467 (first part), 476, 477 and 505 (first part) etc.) (There is a fifth category of offences e.g., sections 116 to 120, where the cognizability and bailability/non-bailability depends upon the nature of the main crime.

This category travels along with the main crime and will be dealt with accordingly.) In the light of the recommendations of the Third Report of National Police Commission and the ratio and the spirit underlying the decisions in Joginder Kumar and D.K. Basu and the decisions of the Supreme Court on the significance of personal liberty guaranteed by Article 21, a question arises whether would it not be advisable to amend the Criminal Procedure Code providing that:

(1) No person shall be arrested for offences which are at present treated as bailable and non-cognizable; in other words, a court shall not issue an arrest warrant in respect of these offences. Only a summons to be served through a court process-server or by other means (but not through a policeman) may be issued. For this purpose, the very expression "bailable" may have to be changed. The expression "bailable" implies an arrest and an automatic bail by the police/court.

There appears no reason to arrest a person accused of what is now categorized as bailable- non-cognizable offences. It is true that in case of non-cognizable offences, police cannot arrest without warrant as would be evident from clause (a) of section 41 but there are other clauses in section 41 which may empower this. For example, clause (b) provides that any person found in possession of "any implement of house breaking" is liable to be arrested unless he proves that there is lawful excuse for such possession.

Instead of calling/categorizing them as "bailable offences", they can simply be categorized as non-cognizable offences and it must be expressly provided that no arrest shall be made by the police in case of these offences and no court shall issue an arrest warrant either. The court may issue a summons to be served in the manner indicated above. Annexure-III to this consultation paper sets out such offences, along with a description of the offences, for easy reference.

(2) In respect of offences at present treated as bailable and cognizable (mentioned in Annexure-IV), no arrest shall be made, but what may be called an "appearance notice" be served upon the person directing him to appear at the Police Station or before the magistrate as and when called upon to do so, unless there are strong grounds to believ.- which should be reduced into writing and communicated to the higher Police officials as well as to the concerned magistrat.- that the accused is likely to disappear and that it would be very difficult toapprehend him or that he is a habitual offender. (In case of the latter ground, material in support of such ground shall be recorded.)

Accordingly, the expression "bailable" shall be omitted in respect of these offences and they should be termed simply as cognizable offences. Section 41 may be amended appropriately to provide that in case of these offences, no arrest shall be made except in the situation mentioned above. Certain offences "excluded" from this annexure shall continue to be treated as bailable-cognizable.

(3) In respect of offences punishable with seven years imprisonment or less which are mentioned in Annexure-V (from which annexure, offences punishable under sections 124, 152, 216-A, 231, 233, 234, 237, 256, 257, 258, 260, 295 to 298, 403 to 408, 420, 466, 468, 477-A and 489-C, have been excluded.- and which are at present treated by the Code of Criminal Procedure as non-bailable- cognizable offence.- should be treated as bailable-cognizable offences and dealt with accordingly. So far the offences excluded from this category are concerned (namely, offences punishable under section 124 and others mentioned above), they shall continue to be treated as non-bailable-cognizable, as at present.

(4) In respect of non-bailable-cognizable offences punishable with more than seven years imprisonment, no change is proposed in the existing law. 2(5) So far as non-bailable-non-cognizable offences punishable up to seven years are concerned, they are placed in the category of offences in Annexure-V, having regard to the nature of offences, though they are treated by law as non-cognizable.