Definitions under the Sanhita

"Electronic communication", clause (i). The communication of any written, verbal, pictorial information or video content transmitted or transferred, whether person to person, device to device, person to device or device to person, by an electronic device including a telephone, mobile phone or other wireless telecommunication device, a computer, an audio-video player, a camera, or any other electronic device or electronic form the Central Government may specify by notification.

The four that are gone

"Metropolitan area", and with it the whole metropolitan magistracy. Clause (k) of the old section 2 defined it. The word "metropolitan" does not occur once in the Sanhita, against ninety-two lines of the old Code's print. That is dealt with in [Classes of Criminal Courts].

"Pleader". Clause (q) of the old section 2. The Sanhita uses "advocate" instead, and the counts tell the story: "pleader" occurs seventy-nine times in the old Code and not once in the Sanhita, while "advocate" occurs twenty-three times in the old Code and ninety-three times in the Sanhita.

"India" and "prescribed" are also no longer defined in section 2.

The definitions a student is actually asked about

Cognizable and non-cognizable, clauses (g) and (o). A cognizable offence is one for which, and a cognizable case is one in which, a police officer may arrest without warrant, in accordance with the First Schedule or under any other law. A non-cognizable offence is one for which a police officer has no authority to arrest without warrant.

Read that again, because it is the definition students most often state backwards. The test is not seriousness. The test is not whether the police may investigate. The test is a single power: may a police officer arrest without a warrant? And the answer is not a matter of opinion, because the First Schedule prints it in a column against every offence.

Bailable and non-bailable, clause (c). A bailable offence is one shown as bailable in the First Schedule, or made bailable by any other law. A non-bailable offence is any other offence.

This one is a trap of drafting. "Non-bailable" is defined as a residue: whatever is not shown bailable. So there is no separate list of non-bailable offences to learn, and, more importantly, "non-bailable" does not mean bail cannot be granted. It means bail is not available as of right.

Complaint, clause (h). Any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Sanhita, that some person, whether known or unknown, has committed an offence. It does not include a police report.

The Explanation adds a case that looks like an exception and is really a definition: a report by a police officer which, after investigation, discloses the commission of a non-cognizable offence is deemed to be a complaint, and the officer who made it is deemed to be the complainant.

Police report, clause (t). A report forwarded by a police officer to a Magistrate under section 193(3). That is the charge sheet at the end of an investigation, and nothing else is a police report.

The pair matters more than either alone, because the whole trial procedure forks on it. A warrant case instituted on a police report is tried under one set of sections and a warrant case instituted otherwise than on a police report under another.

Inquiry, clause (k), and investigation, clause (l). An inquiry is every inquiry other than a trial conducted under the Sanhita by a Magistrate or Court. An investigation includes all the proceedings under the Sanhita for the collection of evidence conducted by a police officer, or by any person other than a Magistrate authorised by a Magistrate.

So the difference is who is doing it and what for. Investigation is by the police, to collect evidence. Inquiry is by a Magistrate or a court, and it is not a trial. Trial is the third thing, and the Sanhita nowhere defines it.

The Explanation to clause (l) is new: where any provision of a special Act is inconsistent with the Sanhita, the special Act prevails. That is section 5 restated inside the definition of investigation, and it matters for POCSO and the Juvenile Justice Act.

Summons-case and warrant-case, clauses (x) and (z). 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.

Note the drafting again: warrant-case is defined positively and summons-case as the residue, exactly as with bailable and non-bailable. Note also that the line is drawn by the punishment the offence can attract, not by the sentence actually passed and not by which process the court happens to issue.

Victim, clause (y). A person who has suffered any loss or injury caused by reason of the act or omission of the accused person, and includes the guardian or legal heir of such victim. The words about the guardian and the legal heir are what let a dead victim's family exercise the rights the Sanhita gives a victim.

Offence, clause (q). Any act or omission made punishable by any law for the time being in force, and it includes any act for which a complaint may be made under section 20 of the Cattle Trespass Act, 1871. The odd tail piece is inherited from the old Code and is worth remembering only because examiners like odd tail pieces.

Officer in charge of a police station, clause (r). It includes, when that officer is absent from the station-house or unable through illness or other cause to perform his duties, the police officer present who is next in rank to him and above the rank of constable, or any other police officer present whom the State Government directs.

Judicial proceeding, clause (m). Includes any proceeding in the course of which evidence is or may be legally taken on oath. Place, clause (s), includes a house, building, tent, vehicle and vessel. Local jurisdiction, clause (n), is the local area within which a Court or Magistrate may exercise its powers, which the State Government specifies by notification and which may be the whole State or part of it. High Court, clause (j), is the High Court for the State, or the High Court whose jurisdiction has been extended to a Union territory, or for any other Union territory the highest court of criminal appeal other than the Supreme Court.

Section 2(2), the borrowing clause. Words used in the Sanhita and not defined in it, but defined in the Information Technology Act, 2000 or the Bharatiya Nyaya Sanhita, 2023, carry the meaning given there. So when the Sanhita says "electronic record", the Information Technology Act's definition is imported without repeating it.

A worked example

Meena's motorcycle is taken from outside her building in Ghatkopar. She goes to the police station.

Is it cognizable? Theft under the Bharatiya Nyaya Sanhita is shown in the First Schedule as cognizable, so a police officer may arrest without a warrant. That answer comes from clause (g) read with the First Schedule, not from anybody's sense of how serious the theft was.

Is it a warrant-case? Theft is punishable with imprisonment which may exceed two years, so under clause (z) it is a warrant-case. It follows automatically that it is not a summons-case, because clause (x) defines a summons-case as anything that is not a warrant-case.

Is what Meena gave the police a complaint? No. A complaint under clause (h) is an allegation made to a Magistrate. What Meena gave the police station is information in a cognizable case, which is dealt with in [The First Information Report].

What the police file at the end is a police report, because clause (t) says a police report is a report forwarded to a Magistrate under section 193(3). And because it is a police report, Meena's case will be tried as a warrant case instituted on a police report.

And if the police, after investigating, find only a non-cognizable offence made out? Then the Explanation to clause (h) applies: their report is deemed to be a complaint, and the officer is deemed to be the complainant. The case then travels down the complaint track instead.

Distinctions

What this does NOT mean

"Cognizable" does not mean serious. Some offences that sound minor are cognizable and some that sound grave are not. The First Schedule decides, and nothing else does.

"Non-bailable" does not mean bail is impossible. It means bail is not a matter of right. Whether it is granted is dealt with in the bail chapters of Module III.

A complaint to the police is not a "complaint". A complaint in the Sanhita's sense goes to a Magistrate. What goes to a police station in a cognizable case is information under section 173. Students lose marks on this every year.

A warrant-case is not a case in which a warrant has been issued. The name is historical. The test is the punishment the offence can attract.

And a definition is not absolute. Section 2(1) opens with "unless the context otherwise requires".

Quick revision

• Section 2(1) defines twenty-six expressions, clauses (a) to (z). The old section 2 defined twenty-four.
• New: audio-video electronic, bail, bail bond, bond, electronic communication. "Bail" was undefined in the old Code.
• Gone: metropolitan area, pleader, India, prescribed.
• Cognizable = police may arrest without warrant. Non-cognizable = they may not.
• Bailable = shown bailable in the First Schedule or made bailable by another law. Non-bailable = everything else.
• Warrant-case = death, life, or more than two years. Summons-case = the rest.
• Complaint goes to a Magistrate and excludes a police report; a police report is a report under section 193(3).
• Inquiry is by a Magistrate or Court and is not a trial; investigation is by the police for collecting evidence; trial is nowhere defined.
• Section 2(2) borrows undefined words from the Information Technology Act 2000 and the Bharatiya Nyaya Sanhita 2023.

Test yourself

1. Define bail under the Sanhita, and say why the definition is notable. Section 2(1)(b): release of a person accused of or suspected of an offence from the custody of law upon conditions imposed by an officer or Court, on his executing a bond or bail bond. It is notable because the Code of Criminal Procedure never defined bail; this is the first statutory definition.

2. Ravi is charged with an offence punishable with two years' imprisonment. Warrant-case or summons-case? Summons-case. A warrant-case needs a punishment exceeding two years, so exactly two years falls outside it and clause (x) makes it a summons-case by residue.

3. The police investigate a case and conclude that only a non-cognizable offence is made out. What is the legal character of the report they send the Magistrate? It is deemed to be a complaint, and the officer who made it is deemed to be the complainant, under the Explanation to section 2(1)(h).

4. Distinguish a bond from a bail bond. A bond is a personal undertaking for release without surety, section 2(1)(e). A bail bond is an undertaking for release with surety, section 2(1)(d).

5. Is "trial" defined in the Sanhita? No. Inquiry and investigation are defined; trial is not. It is understood as the proceeding that begins after the inquiry stage and ends in conviction or acquittal.

6. A word used in the Sanhita is not defined in section 2 but is defined in the Information Technology Act, 2000. What meaning does it carry? The meaning assigned to it in that Act, by section 2(2).

7. Why does the definition of "victim" mention a guardian and a legal heir? Because the rights the Sanhita gives a victim, including the right of appeal, would otherwise die with the victim or be unusable by a child or a person under disability. Clause (y) extends the word to the guardian or legal heir.