The Rajasthan High Court is set to consider the question of law, "What would be the nature of an offence (whether cognisable or non-cognisable) for which imprisonment 'may extend to three years' is provided and no stipulation is made in the statute regarding it being cognisable/non-cognisable?"
A Single Judge of Court last week required the matter to be placed before a Larger Bench for resolving the important question as to whether the offence under Section 91(6)(a) (occupying land without lawful authority) of the Land Revenue Act and those Sections 63 (copyright infringement) and 68A (unauthorised publication of song recording or video film) of the Copyright Act should be treated as 'cognisable or non-cognisable'.
The judge took the prima facie opinion that the view taken by another Single Bench in the 2015 case of Pintu Dey v. State of Rajasthan "does not appear to be laying down the correct proposition of law and I am inclined to differ with the same".
"A plain reading of provision indicates that the offence under Section 91(6)(2)(a) of the Land Revenue Act stipulates punishment which may extend 'upto three years'. Thus, awarding actual imprisonment of 'three years' is permissible for this offence...Supreme Court interpreted various terms of imprisonment referred to in Section 167(2)Cr.P.C. in the case of Rajeev Choudhary...The third category of offences which are made non-cognisable in this Section of the Schedule (I of Cr. P. C.) are those which are punishable 'with imprisonment for less than three years or with fine only'...Therefore, (...), awarding 'actual imprisonment of three years' for an offence which is made non-cognizable by this clause, is not a permissible option...", observed the judge on April 7.
The judge ventured that the offence under Section 91(6)(b) of the Act would definitely be a non- cognisable one, considering Section 91(6) of the Land Revenue Act provides that the offender can be punished with imprisonment which may extend to three years. Thus, the provision does lay that punishment would be continued within three years. Awarding an actual sentence of three years is permissible for the offence.
"A further indication of the legislative intent that the offence was engrafted so as to make it a cognisable one is given in Section 91 itself", continued the Court, explaining that the second proviso to Section 91 mentions that investigation of an offence under clause (a) of sub-section (6) shall not be made by an officer below the rank of a Dy.S.P. Manifestly, investigation can only be made into cognisable offences as no such course of action is permissible for a non-cognisable offence in relation whereto, only an inquiry is permissible as no F.I.R. can be registered for non-cognisable offence. The power to investigate has consciously been provided to the Police, restricting the same to clause (a) whereas clause (b) which provides for imprisonment for a term which may extend to one month, no such power is given.
Click Here To Download Order