In India, our laws provide for multiple ways when it comes to bringing of cases of criminal nature to the court’s attention for the sheer reason of convenience of the justice seeker and the courts to try the matter. The Bhartiya Nagarik Suraksha Sahita (BNSS) provides number of ways in which any person can seek justice and for getting his/ her disputes redressed. One of the ways in which a person can approach a Judicial magistrate first Class (JMFC) to look into his complaint is mentioned in Section 223 of BNSS (Previously Sec 200, Code of Criminal Procedure [CrPC]), wherein the complaint can be treated as a complaint case by the Court and trial can be started as per the provisions of BNSS. This is an effective way of approaching the court in a criminal case. Let’s find out more about this and related provisions under the Sanhita.
First let’s have look into what this
provision says:-
Section 223 of The Bharatiya Nagarik Suraksha Sanhita (BNSS):
Examination of complainant.
(1) 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.
(2) 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.
Here are the steps which this section
provides for: -
1. Lodging of Complaint:
Section 223 of BNSS (previously Section
200 of the CrPC) outlines the procedure for a Magistrate to take cognizance of
an offence. The section begins with the requirement that any person who desires
the Magistrate to take cognizance of an offence must present a complaint or
information, in writing. This complaint should be made over to a Judicial Magistrate
First Class (JMFC) who has jurisdiction over that specific matter. In legal practice,
if a complainant or a witness comes in and highlights any fact or finding where
the Magistrate might feel is pointing towards an offence under any Indian law,
unrelated to any other offence for which proceedings might be already under
way, he can ask the complainant or witness to file a complaint in writing to
him which he will then treat as a complaint in 223 BNSS.
2. The Examination of the Complainant
Once the complaint is presented, the
Magistrate’s role comes into play. The complainant appears before the
Magistrate, and the Magistrate examines them on oath. This means that their
complaints are made over to the magistrate and reduced into writing and he
administers oath onto the witness/ complainant while doing so.
If there are witnesses to the alleged
offence, the Magistrate an also examines them on oath. During the examination,
the Magistrate diligently notes down relevant information like details about
the offence, the parties involved, and any other pertinent facts related to the
offence.
3. The Significance of Section 223BNSS/ 200 CrPC
Once the magistrate has examined the
complainant and /or the witness, he has the responsibility to go through the
facts and findings of the complaint so made in order to decide if such a
complaint can be acted upon. Many factors such as, if the complaint is made in
without any malafide intention, or if the complaint is genuine or not, or if
the facts so described in the complaint are sufficient enough to desire cognizance
or not, or if there is any other administrative or legal difficulty present
with respect to taking cognizance or not, or if the present matter falls in any
of the provisos of Section 223 BNSS, shall be considered by the magistrate
before taking cognizance. If satisfied with the complaint’s substance, they
proceed to the next steps. It is important to note that any time during this step,
if the magistrate feels the need to do so, he can dispose off the complaint
based on any of the above stated grounds.
4. The Procedure Post Examination
Once the Magistrate takes cognizance,
the wheels of justice start turning:
Once the magistrate takes cognizance,
he might have the view that though there is prima facie an offence and even
strong evidences that may have already been provided on record by the
complainant along with his complaint, but there are still more evidences that can
be retrieved or evidences that are necessary for the trial to take place
against the accused. In such a case the magistrate may order further
investigation into the matter. This could involve directing the police to probe
deeper or summoning additional evidence from the complainant.
If it is found on analysing the
further examination or evidences summoned in the case, that the complaint lacks
merit or doesn’t disclose an offence, the Magistrate has the authority to
refuse or dismiss it.
The Magistrate, anytime during this
stage, can question both the complainant and witnesses.
5. Options available with the
magistrate:
Upon examining the complaint as per Section 223 of BNSS, there are three possible scenarios that can pay out:
· Magistrate might think that he is not
competent to take cognizance of case so mentioned in the complaint. He might site
issues relating to jurisdiction, case nature or any other legal defect by reasons
of which that magistrate might not be the competent court to try the complaint
case under Section 223 BNSS. If so, he may return it to the complainant to file
the complaint before the court of law so authorised to take cognizance or he
may return it himself with a written endorsement to a court having appropriate
authority to try this matter under the provisions of Section 224 BNSS.
· If any complaint is received over to
the magistrate by the Chief Judicial Magistrate (CJM) making over the same to
that magistrate under the provisions of Section 212 BNSS, and he realises that the
accused is not residing in his jurisdiction, he may postpone the issue of
process in the case as per Section 225 BNSS. He may at this point inquire
himself or direct a police officer so authorised to conduct investigation
regarding the purpose of deciding whether or not there is sufficient ground for
proceeding through the complaint.
· If the magistrate after Proceedings
in Section 223 BNSS and after the result of the inquiry or investigation (if
any) under section 225, the Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall dismiss the complaint under Section
226 BNSS and in every such case he shall also briefly record his reasons for so
doing.
6. Explanation to Provisos of this Section
By now we have realised that the main
aim of this section is to provide for a stage to a complainant to approach the
court directly if he has substance in his complaint. But at the same time, it
is also to be ensured that the complainant does not misuse the power so
provided to him. Hence proviso were added to the section mainly restricting the
complainant filing complaints against any public officer or public servant who
is performing acts in discharge of his official duties without any malicious
intent.
Also, it provides for the accused to
come and describe his side of story to the complaint made by the complainant and
lead a defence before the court before it takes cognizance of the complaint.
7. Related Judicial Pronouncements
Let’s peek at a few notable cases:
- Chandra
Deo Singh v. Prokash Chandra Bose and anr., 1963: This case emphasized the
importance of a thorough examination by the Magistrate before taking
cognizance.
- Gurudas
Balkrishna v. Chief Judicial Magistrate Goa, 1992: Here, the Supreme Court
clarified that the Magistrate’s examination should be comprehensive and
not cursory.
- Anam
Charan Behera v. State (2001): This case reaffirmed the Magistrate’s duty to
scrutinize complaints diligently.
6. Conclusion
Section 223 BNSS (Previously Section 200
CrPC) provides for a person in need to directly approach the court if he is aggrieved
of an offence and is not getting help from the Investigation Agencies and
Police. If the complainant has enough substance in his complaint he can approach
the court and get his trial moving. This section is essential and ensures that
the legal machinery starts moving only when there’s a genuine cause for action.
It balances the rights of complainants with the need to prevent abuse of the
legal process. So, the next time you encounter a complaint case, remember the
meticulous examination that precedes it!
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