Updated: September 14, 2026

Section 61 of the Benami Act: Offences to Be Non-Cognizable

Section 61 of the Prohibition of Benami Property Transactions Act, 1988 declares that an offence under the Act is non-cognizable. The provision was introduced through the 2016 amendment that substantially revised and renamed the earlier Benami Transactions (Prohibition) Act, 1988.

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Text of Section 61 - Offences to Be Non-Cognizable

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this Act shall be non-cognizable."

The statutory text uses a non-obstante clause - the words "Notwithstanding anything contained..." - to give Section 61 overriding effect over inconsistent procedural treatment under the Code of Criminal Procedure, 1973, for classification of offences under this special law.

What Does "Non-Cognizable" Mean?

Under present criminal procedure, a non-cognizable offence is an offence in which a police officer has no authority to arrest without a warrant. This is distinct from a cognizable offence, where the law permits arrest without warrant subject to the applicable statutory conditions.

Classification as non-cognizable does not mean that the conduct is not punishable. It concerns the procedural powers of the police and the manner in which investigation may begin.

Section 61 and the Bharatiya Nagarik Suraksha Sanhita, 2023

The text of Section 61 continues to refer to the Code of Criminal Procedure, 1973. However, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the CrPC as the general criminal procedure law with effect from July 1, 2024.

For current procedure, Section 174 of the BNSS governs information and investigation relating to non-cognizable cases. In general, a police officer cannot investigate a non-cognizable case without an order of a Magistrate having power to try the case or commit it for trial. Once such an order is obtained, the investigating officer may exercise the specified investigative powers, except the power to arrest without warrant.

Important: Section 61 is a special-law classification provision. The exact procedural route in a particular case can also depend on other provisions of the Benami Act, the BNSS, the nature of the alleged offence, the competent authority and the court having jurisdiction.

Practical Effect of Section 61

Section 61 limits ordinary police powers by classifying offences under the Act as non-cognizable. As a general procedural consequence, police do not obtain an automatic power to arrest without warrant merely because an offence under the Benami Act is alleged.

For investigation of a non-cognizable case under the current BNSS framework, the Magistrate's order contemplated by Section 174 is generally required. If a case includes two or more offences and at least one of them is cognizable, Section 174(4) of the BNSS provides that the case is treated as cognizable.

Correct Name of the Law

The current principal legislation is the Prohibition of Benami Property Transactions Act, 1988. The Benami Transactions (Prohibition) Amendment Act, 2016 was the amending legislation that extensively substituted and inserted provisions in the 1988 Act. For current legal writing and search accuracy, Section 61 should therefore be described as a section of the Prohibition of Benami Property Transactions Act, 1988, as amended.

This page is intended for general legal information. For case-specific advice, consult the statute, current rules, notifications and applicable judicial decisions.