The difference between the two entries is not clerical, and understanding it is what makes the escalation work. When information about a cognizable offence is given to an officer in charge of a police station, the Bharatiya Nagarik Suraksha Sanhita, 2023 requires it to be reduced to writing, read over to the informant, signed, entered in the station book, and a free copy given to the informant forthwith. That is a first information report, and the officer may investigate a cognizable case without any order from a magistrate.
When the information relates to a non-cognizable offence, a different provision applies. The officer enters the substance of the information in a book kept for the purpose, refers the informant to the magistrate, and forwards the daily diary report of all such cases fortnightly to the magistrate. Critically, no police officer shall investigate a non-cognizable case without the order of a magistrate having power to try the case or commit it for trial, and where such an order is made the officer may exercise the same investigative powers as in a cognizable case except the power to arrest without warrant. That is why an entry in the non-cognizable register feels like nothing happening. Legally, nothing is supposed to happen until a magistrate says so.
The Sanhita says that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. So the argument is not that the officer got one section wrong. It is that on the facts you gave, at least one cognizable offence is disclosed, and the consequence in law follows automatically.
Rewrite the complaint before you escalate
Most of these escalations fail for a reason that has nothing to do with the police. The original complaint is written as a narrative of grievance, and it does not state, in plain sentences, the facts that answer the ingredients of a cognizable offence. Before you go anywhere, rewrite it. Set out what happened, in order, with dates, times and places. Name who did what. Then state which offence you say each set of facts discloses. Attach the documents. Keep it short. A complaint that a magistrate can read in three minutes and see the offence in is a complaint that gets an order.
The escalation, in the order the Sanhita provides
- Get a copy of the non-cognizable entry. You need to know exactly what was recorded and under what heading.
- Send the substance in writing, by post, to the Superintendent of Police. The Sanhita provides that a person aggrieved by a refusal of an officer in charge to record the information may send the substance of that information in writing and by post to the Superintendent of Police concerned. Keep the registered post receipt. This step is not optional if you intend to go further, because the next step is built on it.
- Apply to the magistrate for an order of investigation. A magistrate empowered to take cognizance may, after considering an application supported by an affidavit made under that escalation provision, and after such inquiry as he thinks necessary and the submission made by the police officer, order an investigation. The affidavit is a requirement, not a nicety.
- Consider a private complaint in parallel. A magistrate taking cognizance on a complaint examines the complainant and the witnesses present on oath, and the substance is reduced to writing and signed. Note the first proviso: no cognizance shall be taken without giving the accused an opportunity of being heard, which changes the pace of these matters considerably.
- Keep the writ route in reserve. Where the refusal is persistent and the offence is serious, a petition to the High Court of Karnataka is available, and our guide on how a writ petition is filed in the High Court sets out what that involves. Courts prefer that the statutory routes be tried first.
Two special situations
Where the offence was committed outside the station's jurisdiction, the answer is not that you must travel. The Sanhita now provides in terms that information relating to a cognizable offence may be given irrespective of the area where the offence is committed, which is the statutory basis of what is commonly called a zero report; our guide on the zero FIR and how to get a report registered explains how to ask for it. Where the complaint is against a public servant for something done in the discharge of official duties, the magistrate must first receive a report from the officer superior to that public servant and consider the public servant's own account of the situation, which adds a step and some delay.
If the case is registered and then closed
Registration is not the end of the road, and neither is a closure report. Where the police file a report saying no case is made out, the magistrate is not bound to accept it and the informant is entitled to be heard, which is the subject of our guide on the B report and how a closure is opposed in Karnataka. Knowing that in advance changes how you write the first complaint, because the material you put in at the start is what the magistrate will look at when the closure comes.