Cognizable vs Non-Cognizable Offences Under BNS & BNSS: FIR, Preliminary Inquiry, Arrest, Magistrate Order & Remedies

Criminal Law • BNS • BNSS • FIR • Police Investigation • Arrest

Whether an offence is cognizable or non-cognizable determines some of the most important procedural consequences in Indian criminal law: whether the police can arrest without warrant, whether an FIR can be registered and investigated without a Magistrate’s order, what happens when the police refuse to register a case, and whether a complainant must first approach the Superintendent of Police or the Magistrate.

Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), the distinction remains fundamental, but the procedure is no longer identical to the old Code of Criminal Procedure, 1973 (“CrPC”). Section 173 BNSS expressly recognises information given irrespective of territorial limits, permits electronic communication, and introduces a statutory preliminary-enquiry mechanism for a defined category of cognizable offences. Section 174 separately regulates non-cognizable cases. Section 175 governs police investigation of cognizable cases and the Magistrate’s power to direct investigation.

This article explains the current 2026 position with particular reference to Sections 2, 35, 39, 173, 174 and 175 BNSS, the First Schedule, and the Supreme Court decisions in Lalita Kumari v. Government of Uttar Pradesh, Imran Pratapgadhi v. State of Gujarat, Om Prakash Ambadkar v. State of Maharashtra, Satender Kumar Antil v. Central Bureau of Investigation and XXX v. State of Kerala.

1. What is a cognizable offence under the BNSS?

Section 2(1)(g) BNSS defines a “cognizable offence” as an offence for which, and a “cognizable case” as a case in which, a police officer may, in accordance with the First Schedule or any other law for the time being in force, arrest without warrant.

The classification is therefore statutory. One should not decide whether an offence is cognizable merely by looking at how serious it appears factually. The correct inquiry is:

identify the penal provision;
check the BNSS First Schedule where the offence is under the Bharatiya Nyaya Sanhita, 2023 (“BNS”); and
where a special statute applies, examine the classification and procedure prescribed by that statute as well.

2. What is a non-cognizable offence?

Section 2(1)(o) BNSS defines a “non-cognizable offence” as an offence for which, and a “non-cognizable case” as a case in which, a police officer has no authority to arrest without warrant.

The distinction affects both arrest and investigation. In a purely non-cognizable case, the police ordinarily cannot investigate without an order of a competent Magistrate and cannot arrest without warrant merely because the Magistrate has permitted investigation.

3. Cognizable does not mean non-bailable

One of the most common errors is to treat “cognizable” and “non-bailable” as interchangeable. They are not.

Classification	Question answered
Cognizable / Non-cognizable	Can police arrest without warrant and investigate on their own authority?
Bailable / Non-bailable	Is bail a statutory right or subject to judicial discretion?
Summons case / Warrant case	What procedural trial framework applies?
Magistrate / Sessions triable	Which court ordinarily tries the offence?

These classifications must be separately verified from the First Schedule or the governing special law.

4. Section 173 BNSS: information relating to a cognizable offence

Section 173(1) BNSS is the principal provision governing information relating to cognizable offences. It materially modernises the old Section 154 CrPC framework.

4.1 Zero FIR is now reflected in the statutory text

Section 173(1) provides that information relating to commission of a cognizable offence may be given to the officer in charge of a police station irrespective of the area where the offence is committed.

This statutory language supports the practical concept commonly known as a Zero FIR: the complainant should not be turned away merely because the incident occurred outside that police station’s territorial area. Territorial transfer or further procedural handling can follow; refusal to receive information solely on territorial grounds is inconsistent with the text of Section 173(1).

4.2 Oral information

If information is given orally, it must be reduced into writing by or under the direction of the officer, read over to the informant and signed by the person giving it.

4.3 Electronic information and the three-day signature rule

Section 173(1)(ii) expressly permits information by electronic communication. Such information is taken on record on being signed by the person giving it within three days.

Therefore, an online or electronic complaint should not be confused with a finally perfected FIR in every situation. Compliance with the statutory authentication/signature requirement within three days is material.

4.4 Free copy to informant or victim

Section 173(2) requires a copy of the information recorded under Section 173(1) to be given forthwith and free of cost to the informant or victim.

5. Is FIR registration mandatory in every cognizable case?

The answer requires a distinction between the general rule and the specific statutory exception in Section 173(3).

The Constitution Bench in Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, established under the CrPC that where information discloses commission of a cognizable offence, registration of FIR is ordinarily mandatory, subject to the limited preliminary-inquiry principles stated in that judgment.

The BNSS has now introduced a separate statutory mechanism. In Imran Pratapgadhi v. State of Gujarat, 2025 INSC 410, the Supreme Court explained that Section 173(3) BNSS makes a significant departure from Section 154 CrPC.

6. Section 173(3) BNSS: the new statutory preliminary inquiry

Section 173(3) applies where information relates to a cognizable offence punishable with imprisonment of three years or more but less than seven years.

In that category, the officer in charge of the police station may, with prior permission of an officer not below the rank of Deputy Superintendent of Police, and having regard to the nature and gravity of the offence:

conduct a preliminary enquiry to ascertain whether a prima facie case exists for proceeding in the matter, within fourteen days; or
proceed with investigation where a prima facie case exists.

6.1 The preliminary inquiry is not a universal precondition

Section 173(3) does not mean that every complaint alleging an offence punishable below seven years must undergo preliminary enquiry. The statutory bracket is precise: the cognizable offence must be punishable with three years or more but less than seven years. Further, the provision uses a discretionary structure and requires prior permission at DSP level.

In Imran Pratapgadhi, the Supreme Court held that the provision empowers the police to ascertain whether a prima facie case for proceeding exists even though the information, on its face, may disclose a cognizable offence. This is broader than the old Lalita Kumari preliminary inquiry, which was directed to the narrower issue whether the information disclosed a cognizable offence.

6.2 What happens after the preliminary inquiry?

If a prima facie case is found, the police should register the FIR and proceed in accordance with law. If no prima facie case is found, the informant must be informed so that the statutory remedies against refusal can be invoked.

6.3 What the police cannot do

A preliminary inquiry is not a mini-trial. It should not become a mechanism for recording elaborate defence evidence, adjudicating credibility as though at trial, or indefinitely postponing the statutory decision. Section 173(3) itself prescribes the fourteen-day period where a preliminary enquiry is undertaken.

7. Supreme Court in Imran Pratapgadhi: practical effect

Imran Pratapgadhi v. State of Gujarat, 2025 INSC 410 is presently one of the most important authorities on Section 173 BNSS.

The Supreme Court explained that:

the police must first read the information as a whole and determine whether, assuming its factual allegations to be correct, the ingredients of a cognizable offence are disclosed;
where a cognizable offence is disclosed and Section 173(3) does not apply, FIR registration follows the statutory rule;
for cognizable offences punishable with three years or more but less than seven years, Section 173(3) creates an additional statutory option for preliminary enquiry subject to its safeguards; and
criminal provisions, particularly those affecting speech or constitutional freedoms, cannot be mechanically invoked without examining whether their statutory ingredients are actually alleged.

8. What happens in a non-cognizable case? Section 174 BNSS

Section 174 contains a separate statutory procedure.

8.1 Police must make an entry and refer the informant to the Magistrate

When information is given regarding a non-cognizable offence committed within the limits of the police station, the officer must enter or cause to be entered the substance of the information in the prescribed book and:

refer the informant to the Magistrate; and
forward the daily diary report of such cases fortnightly to the Magistrate.

This is commonly described in police practice as an NCR/NC entry, though local terminology and prescribed registers may vary.

8.2 No investigation without Magistrate’s order

Section 174(2) is categorical: 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.

8.3 Even after Magistrate’s permission, police cannot arrest without warrant

Under Section 174(3), once a Magistrate authorises investigation, the police may exercise the same investigative powers as in a cognizable case except the power to arrest without warrant.

This distinction is critical. Permission to investigate does not convert a non-cognizable offence into a cognizable one.

9. Mixed cases: one cognizable offence makes the case cognizable

Section 174(4) addresses composite cases. Where a case relates to two or more offences and at least one is cognizable, the case is deemed to be a cognizable case notwithstanding that the remaining offences are non-cognizable.

However, this provision should not be used to artificially add an inapplicable cognizable section merely to obtain police powers. The ingredients of the cognizable offence must genuinely arise from the allegations and evidence.

10. Can police register an FIR only for a non-cognizable offence?

Ordinarily, no. In Imran Pratapgadhi, the Supreme Court itself used the example of simple hurt under BNS Section 115(2), noting that where the First Schedule classifies the alleged offence as non-cognizable, an FIR cannot be registered merely on that information. The Section 174 procedure must instead be followed.

If, however, the same factual transaction discloses another cognizable offence, Section 174(4) becomes relevant and the case is treated as cognizable.

11. Cognizable offence does not mean automatic arrest

Another recurring misconception is that once an offence is cognizable, arrest necessarily follows. This is legally incorrect.

Section 35 BNSS governs arrest without warrant. For offences punishable up to seven years, the statute requires the police officer to assess the statutory necessity for arrest and record reasons as required.

In Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115, the Supreme Court reaffirmed that for offences punishable with imprisonment up to seven years, a notice under Section 35(3) BNSS is the rule and arrest is the exception. Even non-compliance with a notice does not mechanically make arrest inevitable; the investigating agency must still address legal necessity.

11.1 Section 35(3) notice

Where arrest is not required, the police officer must issue a notice directing the person concerned to appear. If the person complies and continues to comply, Section 35(5) protects against arrest unless reasons are recorded for the opinion that arrest has become necessary.

11.2 Special protection for elderly or infirm persons in offences below three years

Section 35(7) further provides that no arrest shall be made without prior permission of an officer not below the rank of DSP where the offence is punishable with imprisonment of less than three years and the person is infirm or above sixty years of age.

12. Arrest in non-cognizable cases

Section 35(2) states, subject to Section 39, that a person concerned in a non-cognizable offence cannot be arrested except under a warrant or order of a Magistrate.

Section 39 deals with the limited situation where a person accused of committing a non-cognizable offence in the presence of a police officer refuses to give his name and residence, or gives information reasonably believed to be false. It should not be treated as a general arrest power for non-cognizable offences.

13. Police refuse to register FIR: statutory remedy under Section 173(4)

If the officer in charge refuses to record information relating to a cognizable offence, Section 173(4) provides a structured escalation.

Stage 1: approach the Superintendent of Police

The aggrieved person may send the substance of the information in writing and by post to the Superintendent of Police concerned.

If the Superintendent of Police is satisfied that the information discloses a cognizable offence, the SP must either investigate the case personally or direct investigation by a subordinate police officer in accordance with the BNSS.

Stage 2: approach the Magistrate

If the statutory escalation does not result in appropriate action, the aggrieved person may move the Magistrate.

The procedure at this stage is materially affected by Section 175(3) BNSS and the Supreme Court’s decision in Om Prakash Ambadkar v. State of Maharashtra, 2025 INSC 139.

14. Section 175(3) BNSS: Magistrate’s power to order investigation

Section 175(3) empowers a Magistrate authorised under Section 210 BNSS to order investigation, but the BNSS has introduced safeguards beyond old Section 156(3) CrPC.

In Om Prakash Ambadkar, the Supreme Court identified three important changes:

Prior SP approach is mandatory: the applicant must first invoke the remedy under Section 173(4).
Affidavit requirement: the application to the Magistrate must be supported by an affidavit and accompanied by the material showing prior approach to the SP.
Judicial scrutiny: before directing investigation, the Magistrate may make such inquiry as considered necessary and must consider the police officer’s submissions regarding refusal to register the FIR.

The Magistrate is therefore not a mere forwarding authority. A properly drafted Section 175(3) application should specifically establish the cognizable ingredients, prior compliance with Section 173(4), and why police refusal is unsustainable.

15. Complaints against public servants: Section 175(4) BNSS

BNSS has created an additional procedural safeguard where a complaint alleges a cognizable offence against a public servant arising in the course of discharge of official duties.

Section 175(4) requires, among other things, a report containing the facts and circumstances from the officer superior to the public servant and consideration of the public servant’s assertions regarding the situation that led to the alleged incident.

In XXX v. State of Kerala, 2026 INSC 88, the Supreme Court held that Section 175(4) is not an isolated standalone route divorced from Section 175(3). The provisions must be read together, including the written/affidavit-supported complaint requirements applicable at the Magistrate stage.

This procedural protection should not be confused with a final finding that the act was lawfully performed in discharge of official duty. The statutory threshold and later questions of sanction or merits are distinct.

16. Writ petition for FIR registration: should Article 226 be the first remedy?

High Courts possess wide constitutional jurisdiction under Article 226, but where the BNSS provides a structured statutory remedy—police station, Superintendent of Police and Magistrate—the stronger filing practice is ordinarily to exhaust that mechanism unless exceptional circumstances justify immediate constitutional intervention.

Exceptional cases may involve threats to life, custodial violence, demonstrable institutional conflict, need for transfer of investigation, or other circumstances in which ordinary remedies are ineffective. Even then, pleadings should explain why the statutory remedy is inadequate in the facts of the case.

17. Complaint case before Magistrate vs application for police investigation

A person whose grievance has not resulted in an FIR may have more than one procedural route, depending on facts:

Route	Purpose	Typical use
Section 173(4) BNSS	Escalation to SP after police-station refusal	First statutory escalation in cognizable case
Section 175(3) BNSS	Seek Magistrate-directed police investigation	When police investigation, recovery, forensic steps or coercive investigative powers are required
Complaint to Magistrate under the cognizance provisions	Initiate a complaint case before court	Where complainant can lead material directly and police investigation is not indispensable
Article 226 / Section 528 BNSS	Constitutional/inherent judicial relief	Exceptional cases, abuse of process, jurisdictional illegality, or failure of statutory machinery

The correct route should be selected strategically rather than mechanically.

18. Cognizable vs non-cognizable: practical comparison

Issue	Cognizable offence	Non-cognizable offence
Arrest without warrant	Legally possible subject to Section 35 safeguards	Ordinarily not permitted; warrant/Magistrate order required, subject to limited statutory exceptions
Police investigation without Magistrate’s order	Yes, under Section 175(1)	No, Section 174(2) requires Magistrate’s order
FIR under Section 173	Yes where cognizable ingredients are disclosed, subject to Section 173(3) framework	Pure non-cognizable information follows Section 174 rather than FIR route
Police diary/NCR entry	FIR/investigation record as applicable	Entry under Section 174 and reference to Magistrate
Magistrate permission to investigate	Not ordinarily required for police to begin investigation	Required
Effect of mixed offences	Case remains cognizable	If any one offence in the same case is cognizable, Section 174(4) deems the case cognizable

19. Preliminary inquiry vs investigation: do not confuse the two

A preliminary inquiry under Section 173(3) is a threshold exercise to decide whether a prima facie case exists for proceeding in the specified class of cognizable offences.

An investigation is the statutory evidence-gathering process after the matter proceeds as a criminal case. It may include examination of witnesses, collection of electronic evidence, seizure, forensic steps, searches where authorised, arrests where legally necessary, and filing of the police report.

The preliminary inquiry should not be allowed to become an indefinite substitute for investigation.

20. Can police conduct a preliminary inquiry for an offence punishable with seven years exactly?

Section 173(3) uses the expression “three years or more but less than seven years”. Therefore, the special statutory bracket does not, on its text, extend to an offence whose prescribed punishment reaches the category of seven years in the manner excluded by the words “less than seven years”. The exact punishment clause of the offence must be read carefully rather than relying on shorthand descriptions.

21. Can the police refuse FIR because evidence has not yet been produced?

The FIR stage is not the trial stage. The complainant is not required to prove the case beyond reasonable doubt before registration. The core question is whether the factual information, taken at its face value, discloses ingredients of a cognizable offence, subject to the statutory preliminary-inquiry mechanism where Section 173(3) applies.

At the same time, merely writing the number of a cognizable section in a complaint does not compel registration if the factual allegations do not satisfy its ingredients. Imran Pratapgadhi is important precisely because the Court emphasised examination of statutory ingredients rather than mechanical invocation of penal provisions.

22. What should an FIR-refusal representation to the SP contain?

A well-prepared Section 173(4) representation should ordinarily contain:

date, place and chronology of the incident;
identity of accused persons, where known;
specific factual ingredients constituting the cognizable offence;
relevant BNS/special-law provisions, stated cautiously;
copy of complaint submitted to the SHO;
proof of submission/refusal/non-action;
documents, electronic records, photographs or medical records immediately supporting the allegation;
specific investigation required, such as CCTV preservation, CDR preservation, account tracing, forensic imaging or recovery;
request for registration and investigation under Sections 173 and 175 BNSS; and
proof of dispatch and delivery to the SP.

Where a later Section 175(3) application may be necessary, proof of compliance with Section 173(4) should be preserved from the beginning.

23. What should a Section 175(3) application contain?

After Om Prakash Ambadkar, a Magistrate application seeking investigation should be drafted with particular procedural discipline. It should include:

the complete factual complaint;
identification of the cognizable ingredients;
copy of the police-station complaint;
copy of the Section 173(4) representation to the SP;
proof of dispatch/service;
an affidavit supporting the application;
explanation why police investigation is necessary rather than only a private complaint case;
specific investigative steps requiring police powers; and
a carefully framed prayer under Section 175(3).

24. Defence perspective: challenging mechanical FIR registration

For an accused, the cognizable/non-cognizable classification and Section 173 compliance can create important threshold grounds.

Questions to examine include:

Do the factual allegations actually disclose the ingredients of the cited cognizable provision?
Has a cognizable section been artificially added to convert an otherwise non-cognizable dispute into an FIR case?
Was Section 173(3) potentially attracted, and if so was the statutory decision-making process lawfully exercised?
Was the matter essentially civil/commercial with criminal labels added without foundational facts?
Were constitutional speech protections implicated?
Has Section 35 been violated by unnecessary arrest or failure to issue notice?
Does the FIR disclose an abuse of process warranting intervention under Section 528 BNSS or Article 226?

Classification defects do not automatically quash every FIR; the legal consequence depends on the nature of the defect, actual allegations, prejudice and the applicable statutory framework.

25. Complainant perspective: avoiding avoidable FIR refusal

From the complainant’s side, many avoidable refusals arise because complaints state conclusions instead of ingredients. A complaint is stronger when it clearly separates:

who did what;
when and where it occurred;
what property, communication, injury or transaction is involved;
what dishonest, fraudulent, threatening or violent act is specifically alleged;
what documents/electronic records exist; and
which immediate evidence requires preservation.

The complaint should not be overloaded with every conceivable penal section. Incorrect section-citing can distract from an otherwise strong factual case.

26. Special laws: always check the governing statute

The BNS/BNSS classification is not the end of the exercise where a special enactment applies. Laws such as the NDPS Act, UAPA, POCSO Act, Prevention of Corruption Act, Information Technology Act and other special statutes may prescribe distinct arrest, investigation, sanction, bail, limitation or special-court rules.

Practitioners should therefore identify both:

the general BNSS procedure; and
any special statutory provision that modifies or supplements it.

27. Important Supreme Court authorities

Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

Constitution Bench authority on mandatory FIR registration under Section 154 CrPC and the limited preliminary-inquiry framework under the old Code. It remains important background law, but Section 173(3) BNSS now creates an express statutory preliminary-inquiry mechanism for a specified punishment bracket.

Imran Pratapgadhi v. State of Gujarat, 2025 INSC 410

Leading Supreme Court interpretation of Section 173 BNSS. The Court explained the difference between Section 173(1) and the special Section 173(3) mechanism, emphasised examination of the actual ingredients of cognizable offences, and clarified the broader prima-facie inquiry permitted under Section 173(3).

Om Prakash Ambadkar v. State of Maharashtra, 2025 INSC 139

Important authority on Section 175(3) BNSS. The Court highlighted mandatory prior recourse to the Superintendent of Police, affidavit-supported application practice, Magistrate inquiry and consideration of the police officer’s explanation before directing investigation.

Satender Kumar Antil v. Central Bureau of Investigation, 2026 INSC 115

Supreme Court authority on Section 35 BNSS. For offences punishable up to seven years, notice is the rule and arrest is the exception; arrest requires statutory necessity rather than routine police preference.

XXX v. State of Kerala, 2026 INSC 88

Clarifies the relationship between Sections 175(3) and 175(4) BNSS in complaints against public servants and reinforces procedural safeguards before a Magistrate directs investigation.

28. Quick answers

Can police arrest without warrant in every cognizable offence?

No. Cognizability gives statutory authority to arrest without warrant, but exercise of that power remains controlled by Section 35 BNSS. Arrest is not automatic.

Can police investigate a non-cognizable case without a Magistrate?

No. Section 174(2) requires an order of a competent Magistrate.

After a Magistrate permits investigation of a non-cognizable offence, can police arrest without warrant?

No. Section 174(3) expressly withholds the power to arrest without warrant.

If one offence is cognizable and another is non-cognizable, what happens?

Section 174(4) deems the case cognizable if at least one of the offences forming part of the case is cognizable.

Can FIR be filed at any police station?

Section 173(1) permits information regarding a cognizable offence to be given irrespective of the area where the offence occurred, reflecting the Zero FIR principle.

Can FIR information be sent electronically?

Yes. Section 173(1)(ii) recognises electronic communication, subject to the statutory requirement of signature within three days.

Is preliminary inquiry mandatory for every offence punishable below seven years?

No. Section 173(3) specifically concerns cognizable offences punishable with three years or more but less than seven years and operates subject to DSP-level prior permission and the nature and gravity of the offence.

What if police refuse to register a cognizable case?

Invoke Section 173(4) before the Superintendent of Police and, if necessary, move the competent Magistrate under the Section 175(3) framework with an affidavit and proof of prior statutory compliance.

29. Related Fastrack Legal Solutions resources

30. Primary statutory sources

Conclusion

The distinction between cognizable and non-cognizable offences is not merely academic. It determines the legal gateway to FIR registration, police investigation and arrest. Under the BNSS, the analysis must now be more precise than under the old CrPC because Section 173 introduces territorial flexibility, electronic reporting and a statutory preliminary-enquiry mechanism, while Sections 174 and 175 impose distinct safeguards for non-cognizable cases and Magistrate-directed investigation.

For complainants, the strongest approach is to plead the factual ingredients of the cognizable offence, preserve evidence, follow the Section 173(4) escalation route and document every procedural step. For accused persons, the threshold questions are equally important: whether the cited offence is actually cognizable, whether its ingredients are pleaded, whether Section 173 procedure was lawfully followed and whether any arrest satisfies Section 35.

This article is a general legal information resource and does not constitute advice on the facts of any individual case. Statutory classifications and special-law procedures should be verified against the current text applicable to the particular offence.

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