Pre-trial Proceedings: General Observations


In the realm of criminal law, ensuring justice and protecting society are paramount objectives. The journey from the commission of a crime to the delivery of justice is a complex process that hinges on the principles of fairness, due process, and the presumption of innocence. The cornerstone of this process is the trial, where evidence is examined, and guilt is established beyond reasonable doubt. However, the steps preceding a trial—collectively referred to as pre-trial proceedings—play a crucial role in shaping the judicial outcome.

Pre-trial proceedings encompass a wide array of activities, including the reporting of crimes, the initiation of criminal cases, and the investigation of offences. These stages are designed to ensure that only credible and substantial cases proceed to trial, safeguarding the rights of the accused while upholding public interest.

The Indian legal system, governed by the Criminal Procedure Code (CrPC), has established a framework for these pre-trial activities, emphasizing the dual role of the state and private individuals in the administration of criminal justice. This framework distinguishes between cognizable and non-cognizable offences, guiding the police’s authority to arrest and investigate without prior judicial approval.

The distinction between these types of offences is pivotal, influencing how swiftly and thoroughly the state can act in response to criminal activity. While cognizable offences allow immediate police intervention to prevent further harm and secure evidence, non-cognizable offences typically require a magistrate’s direction, reflecting their less urgent nature.

This essay delves into the intricacies of pre-trial proceedings in India, examining the procedural norms, the role of the police, and the categorization of offences. It explores the underlying principles that govern the initiation and investigation of criminal cases, highlighting the strengths and weaknesses of the current system. Through this exploration, the essay aims to shed light on the balance between efficient law enforcement and the protection of individual liberties, a balance that is fundamental to the pursuit of justice.

Importance of a Fair Trial

The principal aim of criminal law is to protect society by punishing offenders. However, justice and fair play require that no one be punished without a fair trial. Even when someone is under a thick cloud of suspicion or has been caught red-handed, they must be tried and adjudged guilty by a competent court. It is essential that justice is not only done but also appears to be done. This principle is fundamental to maintaining public confidence in the legal system. One of the cardinal principles of criminal law is the presumption of innocence until proven guilty beyond a reasonable doubt in a trial before an impartial and competent court.

Therefore, it becomes absolutely necessary that every person accused of a crime is brought before the court for trial and that all evidence against them is made available to the court for deciding their guilt or innocence.

Initiation of Criminal Proceedings

Considering these observations, questions arise regarding the initiation of criminal proceedings: How and by whom is the accused brought before the court for trial? How and by whom is the evidence concerning the alleged crime collected and presented before the court? Typically, victims of crime or those feeling offended or aggrieved by the crime are most likely to be interested in setting the criminal law in motion. Justice and reason suggest that such persons should not only be allowed but also be given all facilities to move the machinery of law against the alleged culprits. It is in the general interest of society that offenders are detected and punished, and the legal system should encourage citizens to invoke the legal process towards this end. According to the Criminal Procedure Code, any person can approach a competent Judicial Magistrate and lodge a complaint regarding the commission of an offence. The magistrate may then have the matter further investigated by the police or may conduct an inquiry to ascertain whether there is sufficient ground for proceeding. If the magistrate believes there is sufficient ground, they would issue summons or warrants to secure the attendance of the accused person for trial.

Here, the criminal process is invoked at the instance of the victim of the crime or any other person. The invocation is completely discretionary at the instance of such a person. However, once the process is invoked, it becomes the responsibility of the complainant to collect evidence and produce it in court. This means that the complainant will have to spend their time and money to conduct the case. In many cases, the complainant may not have the necessary means, nor the skill and capacity required for the job by itself effective to administer criminal justice adequately.

However, a special state agency is devoted exclusively to detecting and preventing crime. Each state has established its own police force for this purpose. These police personnel are specially recruited and trained for this job. They are full-time government employees provided with all the equipment needed for their work. The Criminal Procedure Code has vested them with special powers of interrogation, arrest, search, etc., enabling them to collect evidence and bring the accused before the court expeditiously for trial.

Investigation of Offences and the Role of the Police Force

Section 23 of the Police Act, 1861, stipulates that every police officer’s duty is to collect and communicate intelligence affecting public peace, prevent the commission of offences and public nuisances, detect and bring offenders to justice, and apprehend all persons whom they are legally authorized to apprehend. Section 29 of the same Act also provides penalties for neglecting such duties.

However, the Criminal Procedure Code does not contemplate the use of the police for investigating every offence. The Code classifies all offences into two categories: cognizable and non-cognizable. Clauses (c) and (l) of Section 2 define “cognizable” and “non-cognizable” offences as follows:

  • Cognizable offence: An offence for which a police officer may arrest without a warrant according to the First Schedule or any other law for the time being in force.
  • Non-cognizable offence: An offence for which a police officer has no authority to arrest without a warrant.

In the case of a cognizable offence, a police officer can arrest the alleged culprit without a warrant and can investigate such a case without any orders or directions from a magistrate. The law not only allows police officers to wield these powers but also enjoins them to exercise them in respect of a cognizable case. In the case of a cognizable offence, it is the responsibility of the state (and the police) to bring the offender to justice.

Where the offence is non-cognizable, according to the First Schedule of the Code, or it has not been made cognizable by the Act creating it, it would not be considered as cognizable simply because, under certain circumstances, the police are given the power to arrest without a warrant. In the case of a non-cognizable offence, generally speaking, a police officer cannot arrest without a warrant and has neither the duty nor the power to investigate such an offence without the authority given by a Judicial Magistrate. Exceptions apart, non-cognizable offences are considered more in the nature of private wrongs, and therefore, the collection of evidence and prosecution of the offender are left to the initiative and efforts of private citizens. However, if a Judicial Magistrate considers it desirable for a non-cognizable case to be investigated by the police, they can order the police to do so. In that case, the police officer will have all the powers in respect of the investigation (except the power to arrest without a warrant) as they would have exercised if the case were a cognizable one.

Basis of the Distinction Between Cognizable and Non-Cognizable Offences

The Code has not provided any test or criterion to determine whether a particular offence is cognizable or non-cognizable. It all depends on whether it is shown as cognizable or non-cognizable in the First Schedule of the Code. This schedule refers to all the offences under the Indian Penal Code and categorizes them accordingly. The analysis of the relevant provisions of the schedule shows that this categorization rests on diverse considerations:

  1. Seriousness of Offence: Generally, all serious offences are considered cognizable. The seriousness of the offence is usually determined by the maximum punishment provided for the offence. Offences punishable by imprisonment for not less than three years are generally deemed serious and made cognizable. For serious offences like murder, robbery, and counterfeiting coins, prompt police action for the arrest and investigation is necessary for successful prosecution; therefore, it is advisable to treat these offences as cognizable.

  2. Nature of Offence: Certain offences, though serious, have been considered non-cognizable due to their nature. Offences relating to marriage, such as bigamy and adultery, are punishable with more than five years’ imprisonment but are more in the nature of private wrongs. Making them cognizable might involve too much risk of police intervention in private family life. Similarly, offences against public justice, like giving or fabricating false evidence, though serious, are mostly non-cognizable to prevent police interference in court proceedings.

  3. Public Tranquility and Safety: Certain less severe offences are made cognizable because of the need for prompt action. Offences against public tranquility, spreading infection, or dealing with dangerous substances are examples where immediate police action is required, even though the punishment provided is not severe.

  4. Implementation of Social Reform Laws: For certain social reform laws, offences are made cognizable for better enforcement. For example, offences under the Protection of Civil Rights Act, 1955, though punishable with less than six months’ imprisonment, are made cognizable to ensure better implementation.

Weaknesses of the Current Classification

The current classification system in the First Schedule has some weaknesses:

  1. Presumption of Immediate Action: The classification presumes the need for immediate action in every cognizable offence, or it considers it unnecessary for judicial officers to make arrest decisions in all cognizable cases. This assumption is not fully defensible, as judicial participation in decision-making is usually considered desirable to ensure a fair balance between society’s interests and the individual’s rights.

  2. Knowledge of Classification: The system assumes that every police officer knows the provisions of the First Schedule and other laws that make offences cognizable. This is unrealistic, given the vast number of offences.

  3. Dual Purpose Classification: The same classification is used to determine police powers to arrest and investigate without magistrate orders, leading to functional unsuitability. For example, many social reform legislations are not enforced effectively because their offences are non-cognizable, limiting police intervention. Making such offences cognizable for better enforcement gives the police wide powers to arrest, which might be undesirable.

Innovations and Modifications in Classification

To address some of these issues, there have been innovations in categorizing offences. For instance:

  • The Child Marriage Restraint (Amendment) Act, 1978, made offences under the Child Marriage Restraint Act cognizable for investigation purposes but not for arrest without a warrant, balancing enforcement and protection from undue police intervention.
  • The Criminal Law (Amendment) Act, 1983, modified the classification of certain offences like those under Section 376-B of the Penal Code to allow investigation without a warrant but not arrest without a magistrate’s order, providing a pragmatic approach to categorization.

Duty to Report Offences

Section 39 of the Criminal Procedure Code imposes a duty on every citizen to report certain offences to the authorities. This includes offences against the state, public tranquility, illegal gratification, adulteration of food and drugs, offences affecting life, robbery, criminal breach of trust by public servants, and certain other serious offences. The duty extends to offences committed outside India if they would constitute an offence if committed in India.

While this section is broad, courts have reasonably restricted its application. For example, the duty to inform does not include a person committing or intending to commit an offence, and once the police have secured information, further reporting becomes redundant.

Evolution of the First Information Report

The first information report (FIR) system was introduced in 1861, making it mandatory for police officers to register every information about a cognizable offence, marking the start of an official record and investigation. The requirement of recording every cognizable offence under Section 154 ensures prompt and official initiation of the investigation, making it a cornerstone of the criminal procedure.


The pre-trial proceedings and the classification of offences as cognizable or non-cognizable in India reflect an attempt to balance effective law enforcement with the protection of individual rights. While the system has its weaknesses, ongoing modifications and judicial interpretations continue to shape its effectiveness in administering criminal justice.


K.N. Chandrasekharan Pillai, “R.V. Kelkar’s Criminal Procedure”



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