Complaints to Magistrates | Section 223 to 226 BNSS

Complaints to Magistrates: Chapter XVI of the BNSS, 2023, Sections 223 to 226, the Examination on Oath, the New Right of the Accused to Be Heard and the Inquiry Before Process

A criminal case may begin without the police. Any person may go to a Magistrate and allege that an offence has been committed, and Chapter XVI of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs what happens next. The chapter is short — four sections — and it does a single thing: it supplies, for the complaint route, the filter that the police route supplies by means of an investigation.

In a case on a police report the material has been collected, tested to some degree, and reduced to a report before it reaches the court. In a complaint case there is nothing but an allegation. The safeguards in Chapter XVI exist because of that difference: the complainant is examined on oath, an inquiry may be held before process issues, and the Magistrate must dismiss the complaint if there is no sufficient ground for proceeding. The Sanhita has added a fourth, and it is the most significant change in the chapter: the accused must be given an opportunity of being heard before cognizance is taken.

1. What Is a Complaint

Section 2(1)(h), BNSS 2023

“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.

Explanation. — A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

Element	Content
Any allegation	No particular form is prescribed. It need not be called a complaint, need not be drafted by a lawyer, and need not be verified
Orally or in writing	An oral allegation is a complaint. In practice it is reduced to writing, and section 224 assumes that a complaint may be in writing or not
To a Magistrate	The recipient decides which it is. An identical allegation made to a police officer is not a complaint; it is information under section 173 or section 174
With a view to his taking action	The person must be seeking action under the Sanhita. A letter written for information, or a representation to an authority, is not a complaint
Whether known or unknown	The accused need not be named. A complaint against unknown persons is a complaint
Not a police report	The exclusion is express. But a report disclosing, after investigation, a non-cognizable offence is deemed a complaint, with the officer as complainant

2. The Complaint Route

Figure 1: From the complaint to the issue of process

2.1 The examination on oath: section 223(1)

Section 223, BNSS 2023

(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 that if the Magistrate makes over the case after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

The examination is the core of the chapter. It obliges the complainant to state his allegation on oath, in the presence of a judicial officer, before anything is set in motion against anyone, and it produces a signed record against which his later evidence can be measured. It is the safeguard the complaint route substitutes for the investigation the police route supplies, and it cannot be dispensed with save in the two cases the second proviso allows.

⚠ The first proviso is new, and it reverses the earlier position

Under the Code of Criminal Procedure, the accused had no right to be heard before cognizance was taken on a complaint. He was not a party at that stage, he had no locus, and the first he learnt of the matter was when process was served on him.

Section 223 now provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. That is a substantial change, and it applies to every complaint case, including a protest petition treated as a complaint.

The provision raises questions the section does not answer: what the accused is entitled to see before he is heard, whether he may lead material, and what the Magistrate does where he does not appear. The safe course for a Magistrate is to issue a notice, record that an opportunity was given, and proceed if it is not availed of.

📖 Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430 (Constitution Bench)

Facts: On a complaint, the Magistrate held an inquiry before deciding whether to issue process, and in the course of it permitted the person named in the complaint to participate and to place material before him. The complaint was thereafter dismissed. The question was whether a person named as an accused has any right to take part in the proceeding before process is issued.

Held: The Constitution Bench held that the person against whom the complaint is made has no locus standi at that stage and is not entitled to be heard on the question whether process should be issued. The inquiry is directed to ascertaining the truth or falsehood of the complaint, on the material placed by the complainant, and its object is to protect a person from being called upon to face a frivolous accusation — not to give him a hearing before he is called upon at all. The Court held that the Magistrate is not to weigh the evidence meticulously at that stage; if there is prima facie evidence in support of the allegation, process should issue even though the accused may have a defence. Permitting the accused to participate would convert the inquiry into a trial before the trial.

Ratio: Under the Code of Criminal Procedure the accused had no right to be heard before the issue of process, and the inquiry was confined to the complainant’s material. The Sanhita has departed from this by the first proviso to section 223.

That decision should now be read with the proviso. What survives of it is the character of the inquiry — it is directed at the truth of the complaint, on the complainant’s material, and the Magistrate does not weigh the evidence meticulously or try the case. What has been displaced is the proposition that the accused has no right to be heard: the Sanhita now gives him one, at the stage of cognizance.

3. Sections 224 to 226

Provision	Content
Section 224	A Magistrate not competent to take cognizance. If the complaint is made to a Magistrate who is not competent, he shall — (a) if it is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if it is not in writing, direct the complainant to the proper Court
Section 225	Postponement of the issue of process. Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been made over to him, may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding
Section 226	Dismissal of the complaint. If, after considering the statements on oath of the complainant and of the witnesses and the result of the inquiry or investigation under section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing

3.1 The two limits on section 225

No direction for investigation where the offence is triable exclusively by a Court of Session. The first proviso forbids it, and requires the Magistrate instead to call upon the complainant to produce all his witnesses and examine them on oath. The reason is that a Sessions-triable offence is too serious to be committed for trial on material the Magistrate has not himself seen tested.
No inquiry or investigation where the complainant has not been examined. The second proviso forbids an inquiry or investigation where the Magistrate has not complied with section 223, unless the case is one in which the examination was unnecessary.

📖 Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, AIR 1960 SC 1113

Facts: On a complaint alleging an offence, the Magistrate directed an inquiry and, on the report received, dismissed the complaint on the footing that the act complained of appeared to have been done in the exercise of the right of private defence. It was contended that the Magistrate had exceeded his function: that at that stage he could only see whether the complaint disclosed an offence, and could not act on a defence.

Held: The Supreme Court held that the inquiry under the provision corresponding to section 225 is for the limited purpose of ascertaining the truth or falsehood of the complaint — that is, to obtain material on which the Magistrate may decide whether there is sufficient ground for proceeding. It is not a trial, and the Magistrate does not decide the case. But he is not bound to issue process merely because the complaint discloses an offence: he may dismiss it under the dismissal provision if, on the material before him including the result of the inquiry, he is satisfied that there is no sufficient ground for proceeding. The Court held that the dismissal in that case was within jurisdiction, and emphasised that the Magistrate must record his reasons, briefly, so that the order can be examined.

Ratio: The inquiry before the issue of process is for the limited purpose of deciding whether there is sufficient ground for proceeding. The Magistrate is not bound to issue process merely because the complaint discloses an offence, and he must briefly record his reasons for a dismissal.

⚠ The mandatory inquiry where the accused lives elsewhere

Section 225 says the Magistrate may postpone the issue of process and inquire — and shall do so where the accused is residing at a place beyond the area in which he exercises his jurisdiction.

The provision exists because of a real abuse: a complaint filed in a distant place compels the accused to travel repeatedly to defend himself, and the filing of such complaints was itself used as a weapon. The mandatory inquiry ensures that a person is not summoned across the country on an untested allegation.

The requirement is mandatory, not directory, and process issued without the inquiry where the accused resides outside the jurisdiction is open to challenge on that ground alone.

4. Complaint Case and Police Case Compared

Figure 2: The two routes compared

The difference between the two routes runs through the whole of the proceeding, and the most consequential effect is at the trial. A warrant case instituted on a police report is tried under the first branch of Chapter XX: the charge is framed on the material, and the evidence follows. A warrant case instituted otherwise is tried under the second branch: all the prosecution evidence is taken before the charge is framed. The complainant is therefore put to proof at a much earlier stage, and the accused obtains the whole of the prosecution case before he has to answer any charge.

4.1 Where both exist: section 233

Section 233 deals with the situation where a complaint case and a police investigation relate to the same offence. Where, in a case instituted otherwise than on a police report, it is made to appear to the Magistrate during the inquiry or trial that an investigation by the police is in progress in relation to the same offence, the Magistrate shall stay the proceedings in the complaint case and call for a report from the investigating officer. If a report is made and the Magistrate takes cognizance on it against any person who is an accused in the complaint case, he shall inquire into or try together the complaint case and the case on the police report as if both had been instituted on a police report.

The provision prevents the same occurrence being tried twice, with the possibility of inconsistent findings, and it resolves the procedural difficulty by treating both as police-report cases — which is the more convenient of the two branches, and which does not put the complainant to proof before the charge.

5. Key Takeaways

The position stated shortly

1. A complaint is any allegation made orally or in writing to a Magistrate, with a view to his taking action, that some person known or unknown has committed an offence. It does not include a police report, except one disclosing, after investigation, a non-cognizable offence, which is deemed a complaint.

2. Section 223(1): the Magistrate shall examine upon oath the complainant and the witnesses present, and the substance shall be reduced to writing and signed by them and by him.

3. The first proviso is new: no cognizance shall be taken without giving the accused an opportunity of being heard. It reverses the position under the CrPC, where the accused had no right to be heard before process: Chandra Deo Singh.

4. The examination is not required where the complaint is made in writing by a public servant acting in his official duties or by a Court, or where the case is made over to a Magistrate who need not re-examine.

5. Section 224: a Magistrate not competent shall return a written complaint for presentation to the proper Court with an endorsement, or direct the complainant to the proper Court if it is not in writing.

6. Section 225: the Magistrate may postpone the issue of process and inquire himself or direct an investigation, and shall do so where the accused resides beyond his jurisdiction.

7. He may not direct an investigation where the offence is triable exclusively by a Court of Session; he must instead call on the complainant to produce all his witnesses and examine them on oath.

8. The inquiry is for the limited purpose of deciding whether there is sufficient ground for proceeding. The Magistrate is not bound to issue process merely because the complaint discloses an offence: Vadilal Panchal.

9. Section 226: where there is no sufficient ground for proceeding, the Magistrate shall dismiss the complaint and briefly record his reasons.

10. Section 233: where a complaint case and a police investigation concern the same offence, the complaint case is stayed, and on the report being received the two are tried together as if both had been instituted on a police report.

6. Frequently Asked Questions

What is a complaint under the BNSS?

Any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Sanhita, that some person whether known or unknown has committed an offence. It does not include a police report, except one which after investigation discloses a non-cognizable offence.

Must the complainant be examined on oath?

Yes, under section 223(1), along with the witnesses present, and the substance must be reduced to writing and signed. The examination is not required where the complaint is made in writing by a public servant acting in his official duties or by a Court, or where the case is made over to another Magistrate who need not re-examine.

Does the accused have a right to be heard before cognizance on a complaint?

Yes. The first proviso to section 223 provides that no cognizance shall be taken without giving the accused an opportunity of being heard. The requirement is new, and it reverses the position under the Code of Criminal Procedure.

When must the Magistrate hold an inquiry before issuing process?

He may do so in any case. He must do so where the accused is residing at a place beyond the area in which he exercises his jurisdiction. The requirement is mandatory, and process issued without it in such a case is open to challenge.

Can the Magistrate direct a police investigation on a complaint?

Yes, under section 225, before issuing process, to decide whether there is sufficient ground for proceeding. But not where the offence is triable exclusively by a Court of Session; in that case he must call on the complainant to produce all his witnesses and examine them on oath.

What happens if there is both a complaint case and a police case?

Section 233 requires the Magistrate to stay the complaint case and call for a report from the investigating officer. If he takes cognizance on the report against a person who is an accused in the complaint case, he inquires into or tries the two together as if both had been instituted on a police report.

Related Topics

Commencement of Proceedings: Sections 227 to 233, BNSS
Conditions Requisite for Initiation of Proceedings: Sections 210 to 222
Cognizance and the Framing of a Charge Distinguished
The Protest Petition
Complaint, FIR and Police Report: The Distinction
Non-Cognizable Offences under the BNSS, 2023: Section 174