Cognizability of offence
If police are in doubt whether an offence is cognizable, they should record the information and seek the Magistrate’s order to investigate under Section 155(2) CrPC. If any part appears cognizable (a “mixed” case), they may treat the entire matter as cognizable and investigate under Sections 154/156 CrPC.
The legal position (Bangladesh)
- What is “cognizable”?
Under CrPC, s.4(f), a cognizable offence is one for which police may arrest without warrant; they can investigate without prior Magistrate order (s.156). For non-cognizable offences, police cannot investigate without the Magistrate’s order (s.155(2)). - If police doubt cognizability
- Prudent course: Make a GD entry, receive the information, and place the matter before the Magistrate for an order under s.155(2) authorising investigation.
- If information indicates a “mixed” case (some cognizable, some non-cognizable), the matter may be treated as cognizable as a whole, and police can register FIR (s.154) and investigate (s.156). (This follows the settled principle that a case involving at least one cognizable offence is treated as cognizable for investigation purposes.)
- If it appears non-cognizable: The informant is to be referred to the Magistrate (s.155(1)). Police may only proceed after the Magistrate’s written order (s.155(2)).
- Screening/limited steps
Even while in doubt, police may:- Send a report to the Magistrate and decide whether to proceed (s.157), and
- Seek directions/inquiry from the Magistrate (s.159).
For imminent harm, police may take preventive measures (e.g., ss.149–151 CrPC) regardless of the cognizability doubt.
- Effect of an error
If police mistakenly treat a non-cognizable case as cognizable and investigate without a Magistrate’s order, courts generally treat it as an irregularity curable absent prejudice to the accused (curative provision: s.537 CrPC as applied in practice), but the safer, lawful route is to seek the Magistrate’s order when in doubt.
Summary
- Doubt → go to the Magistrate (s.155(2)).
- Mixed allegations → treat as cognizable; investigate (ss.154, 156).
- Non-cognizable only → refer informant (s.155(1)) and proceed only with Magistrate’s written order (s.155(2)).
- Always preserve fairness by promptly informing the Magistrate (ss.157, 159).