Law and You >Procedural Laws > BNSS > Examination of Complainant (S. 223 BNSS)
The examination of the complainant is an important preliminary stage in proceedings instituted upon a complaint under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The procedure enables the Magistrate to examine the allegations placed before the court and assess whether there is sufficient basis for proceeding with the matter. It also serves as an important mechanism of judicial scrutiny before the criminal process advances further. Under Section 223 of the BNSS, a Magistrate having jurisdiction, while taking cognizance of an offence on a complaint, is generally required to examine the complainant and the witnesses present, if any, on oath.
The examination of the complainant serves both a procedural and protective purpose. It enables the Magistrate to apply judicial mind to the allegations while ensuring that the complaint proceeds in accordance with the safeguards prescribed by law. Understanding this provision is essential to appreciating the manner in which complaint cases are scrutinised and initiated under the BNSS.
According Section 2(h) BNSS, “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, that some person, whether known or unknown, has committed an offence, but does not include a police report. This definition is important because it distinguishes a complaint made to a Magistrate from a police report.
A complaint begins with an allegation that an offence has been committed. The person making the allegation is essentially bringing an accusation before the Magistrate and seeking legal action. It may be oral or in writing. The alleged offender may be known or unknown. A police report submitted after investigation is treated separately under the BNSS and is not considered a “complaint” for the purposes of this definition.
Examination of Complainant (S. 223 BNSS)
Taking Cognizance of Offence (S. 223(1) BNSS):
According to Section 223(1) BNSS, a Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
A complaint is an allegation made to a Magistrate with a view to taking action under the BNSS. Section 223(1) BNSS, deals with the examination of the complainant and witnesses by a Magistrate when taking cognizance of an offence on a complaint. Its purpose is to ensure that, before proceeding with a complaint case, the Magistrate applies judicial mind to the allegations and records the substance of the complainant’s and witnesses’ statements, subject to the exceptions provided in the section.
To take cognizance of complaint, the Magistrate must be competent under law to deal with the offence. A Magistrate without the necessary jurisdiction cannot ordinarily proceed merely because a complaint has been presented before them. At this stage, the Magistrate is considering whether there is sufficient basis to proceed with the complaint; the Magistrate is not conducting the trial or deciding the guilt of the accused.
When taking cognizance on a complaint, the Magistrate is generally required to examine the complainant upon oath. The purpose is to enable the Magistrate to ascertain the substance of the allegations directly from the complainant and to assess whether there is sufficient basis for proceeding. The examination being “on oath” means that the complainant is required to make the statement formally under oath, subject to the legal consequences of giving a false statement. The Magistrate must also examine the witnesses present, if any, on oath.
The Magistrate must reduce the substance of the examination of the complainant and witnesses to writing. This creates a formal record of what was stated before the Magistrate at the preliminary stage. The written record must be signed by the complainant; the witnesses whose statements have been recorded; and the Magistrate. The signatures authenticate the recorded statements and confirm that the examination was properly recorded.
The first proviso states that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. This is an important procedural safeguard. It means that, according to the provision as quoted, the accused must be given an opportunity to be heard before cognizance is taken. This requirement is significant because it introduces an opportunity for the proposed accused to place their position before the Magistrate at the cognizance stage.
The second proviso creates an exception to the requirement of examining the complainant and witnesses. The first exception is where the complaint is made in writing by a public servant acting or purporting to act in the discharge of official duties, or a Court, the Magistrate need not examine the complainant and witnesses. The law recognises that such complaints are made by public authorities or courts in their official capacity. Therefore, the additional preliminary examination is not considered necessary in these circumstances.
The second exception is that the Magistrate also need not examine the complainant and witnesses where the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212 BNSS. In other words, if the Magistrate who receives the complaint transfers/makes over the case to another competent Magistrate in accordance with Section 212, the initial Magistrate need not conduct the examination merely because the complaint has been presented before them.
The third proviso deals with a situation where the first Magistrate has already examined the complainant and witnesses and subsequently makes over the case to another Magistrate under Section 212. In such a situation, the Magistrate to whom the case is made over need not examine them again. This prevents unnecessary repetition of the same preliminary examination.
The provision under Section 223(1) BNSS serves several purposes:
- Judicial Application of Mind: It enables the Magistrate to assess the complaint before proceeding further.
- Preliminary Scrutiny: The Magistrate obtains the complainant’s and witnesses’ versions on oath.
- Record Keeping: Their examination is formally recorded.
- Prevention of Unnecessary Repetition: The provisos avoid duplicate examination where it is not required.
- Procedural Safeguards: The provision establishes a structured procedure before criminal proceedings move forward.
Complaint against Public Servant (S. 223(2) BNSS):
According to Section 223(2) BNSS, a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.
This provision creates a special procedural safeguard for public servants when a complaint is filed against them for an offence allegedly committed while discharging their official functions or duties. The basic rule is that a Magistrate cannot take cognizance of such a complaint unless the two specified requirements are first fulfilled.
Under clause (a), the public servant must be given an opportunity to make assertions regarding the situation that led to the alleged incident. In simple terms, before the Magistrate takes cognizance, the concerned public servant must be given an opportunity to explain their version of the circumstances surrounding the incident. This provides the public servant with an opportunity to place relevant facts before the Magistrate at the preliminary stage.
Under clause (b), a report containing the facts and circumstances of the incident must be received from the officer superior to the concerned public servant. Thus, the Magistrate must have the benefit of a report from the public servant’s superior officer before taking cognizance.
The provision requires both (a) and (b) conditions to be fulfilled. Therefore, merely obtaining the public servant’s explanation is not sufficient if the required report from the superior officer has not been received.
The purpose is to ensure that a public servant is not subjected to criminal proceedings arising out of official duties without preliminary consideration of the circumstances in which the act occurred. Official decisions and actions can sometimes give rise to complaints from affected persons. This provision seeks to ensure that the Magistrate considers the public servant’s explanation and the factual report of the superior officer before taking the significant step of taking cognizance.
At the same time, the provision does not mean that a public servant is immune from prosecution. It establishes a procedural requirement that must be satisfied before cognizance can be taken in the specified circumstances.
Procedure by Magistrate not Competent to Take Cognizance of Case (S. 224 BNSS)
According to Section 224 BNSS, if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,—
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the proper Court.
This provision deals with a situation where a complaint is presented before a Magistrate who does not have legal competence or jurisdiction to take cognizance of the alleged offence.
Instead of considering or dismissing the complaint on merits, the Magistrate must direct the complainant to the proper Court. The procedure differs depending on whether the complaint is written or oral.
- If the complaint is in writing, , the Magistrate must return the complaint to the complainant. The complaint must be returned with an endorsement stating that it is being returned for presentation before the proper Court. The Magistrate does not decide whether the allegations are true or whether the accused is guilty. The purpose is simply to ensure that the complaint reaches the court competent to deal with it.
- If the complaint is oral, there is no written document that can be returned. Therefore, the Magistrate must direct the complainant to approach the proper Court.
Conclusion:
The examination of the complainant under the Bharatiya Nagarik Suraksha Sanhita, 2023, constitutes an important preliminary safeguard in complaint proceedings. By requiring the Magistrate to examine the complainant and witnesses on oath, subject to the exceptions prescribed by law, the provision ensures that the allegations receive appropriate judicial scrutiny before the criminal process proceeds further. Section 224 BNSS is intended to ensure that a complaint is presented before the court legally competent to take cognizance, while preventing a complainant from losing the opportunity to pursue the matter merely because it was initially presented before the wrong Magistrate.
The BNSS also incorporates safeguards in cases involving public servants, particularly where the alleged offence arises in the course of official duties. The requirement of providing an opportunity to the public servant and obtaining a report from the superior officer promotes fairness and prevents the criminal process from being invoked without proper consideration of the circumstances.