Understanding BNSS Section 223: A Detailed Guide to the Examination of Complainant

 

Introduction to BNSS Section 223

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant reform in India's criminal justice system, replacing the long-standing Code of Criminal Procedure (CrPC), 1973. This new legislation introduces several procedural changes aimed at streamlining processes and balancing the rights of all parties involved. A critical component of this new code is BNSS Section 223, which details the procedure a Magistrate must follow when "taking cognizance" of an offence based on a private complaint.

This article provides a detailed and clear explanation of BNSS Section 223. We will break down its provisions, explore the important new rights it grants to the accused, and explain the special procedures for complaints filed against public servants. This guide is intended for law students, legal professionals, and any individual seeking to understand how criminal cases are initiated through private complaints under the new law.

The Process of Taking Cognizance on a Complaint

Before diving into the section itself, it is important to understand two key terms: "complaint" and "cognizance."

  • Complaint: In this legal context, a complaint is not a police report (or First Information Report, FIR). It is an allegation, made either orally or in writing, to a Magistrate by a private individual, claiming that an offence has been committed. The person filing is called the "complainant."

  • Taking Cognizance: This is the first official step where a Magistrate applies their judicial mind to the complaint. It is the moment the court formally acknowledges the alleged offence to decide whether there is enough credible information to proceed with the case against the person named as the accused.

BNSS Section 223 is the very first checkpoint. Its primary purpose is to act as a filter. It ensures that a Magistrate carefully examines the complaint's foundation before issuing a summons or warrant, which would require a person to appear in court and face a criminal charge. This prevents the legal system from being used for false, frivolous, or malicious reasons.

The General Rule: Examination of the Complainant on Oath

Subsection (1) of BNSS Section 223 establishes the standard procedure. It states that a Magistrate who has the authority (jurisdiction) to handle the case must, upon receiving a complaint, do the following:

  1. Examine the Complainant: The Magistrate must personally question the complainant.

  2. Examine Witnesses: If the complainant has brought any witnesses with them at that time, the Magistrate must examine them as well.

  3. Under Oath: This examination must be conducted "upon oath." This is a crucial step. It binds the complainant and witnesses to tell the truth. Providing false information under oath is a criminal offence (perjury), which discourages people from filing baseless complaints.

Recording the Substance of the Examination

The law further mandates that the "substance of such examination shall be reduced to writing." This means the Magistrate must create a written record of the key facts and statements provided by the complainant and witnesses.

This written record must then be signed by the complainant, the witnesses who were examined, and the Magistrate. This signed document becomes a permanent part of the case file. It serves two main purposes:

  • It forms the primary basis for the Magistrate's decision on whether to proceed with the case.

  • It locks the complainant into their initial story, preventing them from changing their allegations later in the process.

A New Right for the Accused under BNSS Section 223

Perhaps the most groundbreaking change introduced by BNSS Section 223 is found in its first proviso (an exception or condition added to a legal clause).

The First Proviso: Opportunity of Being Heard Explained

The text states: "Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."

This is a major departure from the old CrPC (Section 200). Under the previous system, the entire process of taking cognizance was one-sided. The Magistrate only heard the complainant and their witnesses. The person accused in the complaint had no right to speak or present their side of the story at this stage. Their involvement only began after the Magistrate had already taken cognizance and issued a summons.

BNSS Section 223 fundamentally alters this. It now mandates that the Magistrate must notify the person named as the accused and give them a chance to be heard before deciding whether to take cognizance.

Implications of this Pre-Cognizance Hearing

This new provision introduces a key principle of natural justice, audi alteram partem (hear the other side), at the very beginning of the case.

  • Protection from Harassment: It provides a powerful safeguard for individuals who might be falsely implicated in a case. They now have a chance to present evidence or arguments to the Magistrate to show that the complaint is baseless, malicious, or a dispute of a civil (non-criminal) nature.

  • Stronger Judicial Filter: This hearing gives the Magistrate a more balanced picture. By hearing both sides, the court can more effectively weed out frivolous litigation, saving judicial time and resources.

  • Potential for Early Resolution: It allows the accused to point out factual errors or legal bars to the case (for example, that the complaint is filed too late) at the earliest possible moment, potentially ending the matter before it escalates into a full trial.

This change aims to protect the liberty of individuals by preventing them from being dragged into a criminal trial without a preliminary opportunity to defend themselves.

Exceptions: When is the Examination of Complainant Not Required?

The general rule of examining the complainant on oath is not absolute. BNSS Section 223 provides clear exceptions, which are listed in its second proviso. The Magistrate need not examine the complainant or witnesses in two specific situations.

Complaints by Public Servants or Courts

The examination is not required if the complaint is made in writing by:

  • (a) A public servant acting (or appearing to act) in the discharge of their official duties; or

  • (b) A Court.

The logic here is based on trust. The law presumes that a public servant acting in an official capacity or a court of law will not file a frivolous or false complaint. Their official position or judicial status is considered a sufficient guarantee of the complaint's authenticity, making the preliminary examination under oath unnecessary.

Transfer of Cases to Another Magistrate

The rules also account for the administrative transfer of cases between judges.

  • Proviso 2(b): If a Magistrate receives a complaint and, before examining the complainant, transfers the case to another Magistrate (under Section 212 of the BNSS), the first Magistrate is not required to perform the examination. The responsibility will then fall to the second Magistrate.

  • Proviso 3: This proviso prevents wasted effort. It clarifies that if the first Magistrate does complete the examination and then transfers the case to another Magistrate, the second Magistrate need not re-examine the complainant and witnesses. They can rely on the record already created.

Special Category: Complaints Against Public Servants under Section 223(2)

Subsection (2) of BNSS Section 223 creates a special, strengthened layer of protection for public servants. This rule applies when a private complaint is filed against a public servant for an offence they allegedly committed while performing their official functions or duties.

This section creates a mandatory bar. It states that a Magistrate shall not take cognizance of such a complaint unless two conditions are met first.

Condition 1: Opportunity for the Public Servant to Make Assertions

The public servant who is accused must be "given an opportunity to make assertions as to the situation that led to the incident so alleged."

This is similar to the right given to all accused persons in the first proviso, but it is a specific and separate requirement for public servants. It gives them the right to explain the official context of their actions (for example, that they were acting under a specific law or order) before the case can proceed.

Condition 2: Requirement of a Superior Officer's Report

The Magistrate must also receive "a report containing facts and circumstances of the incident from the officer superior to such public servant."

This means the court must seek an official, internal report from the accused public servant's boss or department. This report provides an administrative perspective on the incident, which helps the Magistrate determine if the public servant was acting legitimately within their role.

These two conditions combined create a high threshold for initiating private criminal proceedings against public servants for their official acts. The goal is to protect them from retaliatory or vexatious lawsuits designed to intimidate them or obstruct them from performing their duties.

Also read: BNSS Section 220

Conclusion: The Significance of BNSS Section 223

BNSS Section 223 is more than just a procedural update to the old Section 200 of the CrPC. It represents a fundamental shift in the philosophy of initiating private criminal cases.

By retaining the essential check of examining the complainant on oath, the law continues to filter out baseless claims. However, by introducing a mandatory pre-cognizance hearing for the accused, BNSS Section 223 significantly strengthens the principles of natural justice and fairness. It rebalances the process, offering crucial protection to individuals from the very start.

Furthermore, the specific and robust safeguards for public servants under Section 223(2) aim to create a protected environment for them to discharge their official duties without fear of frivolous litigation. For law students and professionals, understanding the nuances of this section is vital, as it reshapes the initial stages of criminal litigation and will undoubtedly be a subject of significant judicial interpretation in the years to come.

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