Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Conditions Requisite for Initiation of Proceedings Sections 210 to 222
Conditions Requisite for Initiation of Proceedings: Chapter XV of the BNSS, 2023, Cognizance under Section 210, Sanction under Section 218 and the Bars on Cognizance
Cognizance is the moment at which a criminal proceeding begins. Before it there is information, or a complaint, or an investigation; after it there is a case. The Bharatiya Nagarik Suraksha Sanhita, 2023 nowhere defines the expression, and the meaning has been supplied by the courts: a Magistrate takes cognizance of an offence when he applies his mind to the suspected commission of an offence for the purpose of proceeding. He does not take cognizance of an offender; the object of the exercise is an offence, and the identification of the person comes later.
Chapter XV contains thirteen sections. Sections 210 to 214 confer the power and allocate it; sections 215 to 222 take it away in defined situations, by requiring a particular complaint, or a particular complainant, or the sanction of a Government. A bar of that kind is jurisdictional: where the condition is not satisfied the court has no power to take cognizance at all, and everything that follows is without authority.
1. The Meaning of Cognizance
The expression is not defined, and the test that has been applied for many decades is a test of application of mind for a particular purpose. A Magistrate does not take cognizance merely by receiving a document, by ordering an investigation, or by issuing a search warrant; he takes cognizance when he applies his mind to the material with a view to proceeding against the person under the provisions that follow.
The Magistrate’s act | Is it cognizance? |
|---|---|
Receiving a complaint and reading it | Not yet. Receipt alone is not cognizance |
Ordering an investigation under section 175(3) before applying his mind to proceeding | No. He is setting the machinery in motion, not proceeding on the offence. Cognizance comes afterwards, on the report |
Examining the complainant on oath under section 223 with a view to proceeding | Yes. He has applied his mind to the offence for the purpose of proceeding |
Postponing the issue of process and ordering an inquiry under section 225 | Yes — section 225 operates after cognizance and is an aid to deciding whether to issue process |
Issuing a search warrant, or authorising detention under section 187 | No. Those are steps in aid of the investigation, not the assumption of the offence |
Taking a report on record and deciding to issue process | Yes |
⚠ Three propositions that follow from the definition Cognizance is of an offence, not of an offender. It is therefore taken once in a case, and the Magistrate may afterwards proceed against a person not named in the report. A person is not “taken cognizance of”. The order need not record reasons. The section does not require them. What it requires is that the mind be applied, and the summoning of an accused is a serious matter that is not to be done mechanically. Once taken, it cannot be recalled by the same court. There is no provision permitting a Magistrate to review or recall a summoning order, and the remedy of an aggrieved accused lies in the High Court. |
2. The Three Modes: Section 210
Figure 1: The three modes, and cognizance by a Court of Session
Section 210(1), BNSS 2023 Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence — (a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence; (b) upon a police report (submitted in any mode including electronic mode) of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. |
Clause | What follows |
|---|---|
(a) Complaint | Chapter XVI applies: the complainant and the witnesses present are examined on oath under section 223; the accused must be given an opportunity of being heard before cognizance, which is new; and the Magistrate may postpone process and inquire under section 225 |
(b) Police report | The report is a police report whatever its conclusion, so the Magistrate may take cognizance even on a report recommending closure, because he takes cognizance of the offence disclosed by the material and not of the officer’s opinion. Section 230 governs the supply of documents |
(c) Information or own knowledge | Section 211 gives the accused a safeguard: before any evidence is taken, he must be informed that he is entitled to have the case tried by another Magistrate, and if he or any of several accused objects, the case is transferred. The reason is that a Magistrate who has proceeded on his own knowledge may appear to be both accuser and judge |
Section 210(2) permits the Chief Judicial Magistrate to empower a Magistrate of the second class to take cognizance of offences within his competence. Section 212 permits the Chief Judicial Magistrate, after taking cognizance or on a case being made over to him, to make over the case to a competent subordinate Magistrate for inquiry or trial.
2.1 Cognizance by a Court of Session
Section 213 provides that, except as otherwise expressly provided by the Sanhita or by any other law, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate. Commitment under section 232 is therefore the ordinary gateway to a Sessions trial, and the Court of Session does not receive a complaint or a police report directly. Section 214 provides that an Additional Sessions Judge shall try such cases as the Sessions Judge makes over to him, or as the High Court by special order directs.
3. The Bars on Cognizance
Figure 2: Sections 215 to 222
3.1 Section 215: a complaint by the public servant or the Court
No Court shall take cognizance of the specified offences relating to contempt of the lawful authority of public servants except on the written complaint of the public servant concerned or of some other public servant to whom he is administratively subordinate. And no Court shall take cognizance of the specified offences against public justice, or of offences relating to documents given in evidence, where they are alleged to have been committed in, or in relation to, a proceeding in any Court, except on the complaint in writing of that Court or of some other Court to which it is subordinate.
The reason for the second limb is that offences such as giving false evidence, or fabricating evidence for use in a proceeding, are offences against the administration of justice in a particular court, and that court is best placed to judge whether a prosecution is warranted. Permitting a private complaint would expose every witness to prosecution at the instance of a dissatisfied litigant.
3.2 Section 217: offences against the State
No Court shall take cognizance of the specified offences against the State, or of a criminal conspiracy to commit such an offence, except with the previous sanction of the Central Government or of the State Government. The section also requires sanction for certain offences relating to criminal conspiracy generally, and provides that no Court shall take cognizance of an offence of criminal conspiracy punishable in the manner the section specifies except where the State Government or the District Magistrate has consented in writing.
3.3 Section 218: Judges and public servants
Section 218, BNSS 2023 When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction — (a) in the case of a person employed in connection with the affairs of the Union, of the Central Government; (b) in the case of a person employed in connection with the affairs of a State, of the State Government. And, newly: the Government shall take a decision within a period of one hundred and twenty days from the date of receipt of the request for sanction, and on the expiry of that period, if no decision is taken, the sanction shall be deemed to have been accorded. |
⚠ The hundred and twenty day rule is new, and it matters Under the Code of Criminal Procedure the request for sanction could remain undecided indefinitely, and the practical effect was that a prosecution against a public servant could be defeated by inaction rather than by refusal. Section 218 fixes a period of one hundred and twenty days, and provides that on its expiry without a decision the sanction is deemed to have been accorded. The default now operates against the authority rather than against the prosecution. The provision does not affect the substantive question whether sanction was required at all, which turns on whether the act was done while acting or purporting to act in the discharge of official duty. It affects only what happens once a request has been made. |
📖 Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 (Constitution Bench) Facts: Public servants were prosecuted for assault alleged to have been committed in the course of a search conducted under statutory authority. The question was when sanction is required — that is, what it means for an act to be done “while acting or purporting to act in the discharge of his official duty” — and at what stage the question is to be decided. Held: The Constitution Bench held that the test is whether there is a reasonable connection between the act complained of and the discharge of official duty: the act must bear such relation to the duty that the public servant could lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of the performance of his duty. It is not every offence committed by a public servant while on duty that attracts the protection; but it is not necessary that the act be one he was authorised to do, because the section covers acts done purporting to act in the discharge of duty. The Court held that the question whether sanction is necessary may arise at any stage of the proceeding, and that the answer may depend on the facts as they emerge; the complaint alone does not always determine it. The section, so construed, is not discriminatory and does not offend Article 14. Ratio: Sanction is required where there is a reasonable connection between the act complained of and the discharge of official duty, such that the public servant could make a reasonable claim to have acted in the course of it. The question may arise at any stage of the proceeding. |
📖 Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 Facts: A Magistrate, on a private complaint against public servants alleging offences committed in the discharge of their official duties, directed an investigation by the police without any sanction having been obtained. The question was whether the requirement of sanction applies at that stage, or only when cognizance is taken. Held: The Supreme Court held that a Magistrate cannot order an investigation against a public servant in respect of an offence alleged to have been committed in the discharge of his official duties without the sanction the law requires. The direction to investigate is not a mechanical act; it requires the application of mind to the material, and if the Magistrate cannot take cognizance without sanction, he cannot set the process in motion against the public servant in the meantime by ordering an investigation. The Court held that the protection would otherwise be illusory, since the public servant would be subjected to the whole of an investigation before the question of sanction arose at all. Ratio: The protection of sanction extends to the stage of ordering an investigation. A Magistrate cannot direct an investigation against a public servant for an act done in the discharge of official duties without the sanction that would be required for cognizance. |
The Sanhita has given that principle a statutory foundation. Section 175(4) now provides a special procedure where an application is made for an order of investigation against a public servant arising in the course of the discharge of his official duties: the Magistrate must consider the report containing the facts and circumstances of the incident from the superior officer of the public servant concerned, and must consider the assertions made by the public servant as to the situation that led to the incident.
4. The Complainant-Specific Bars
Provision | Offence | Who alone may complain |
|---|---|---|
Section 219 | Offences against marriage — the specified offences relating to bigamy, fraudulent marriage, and adultery-type offences under the Bharatiya Nyaya Sanhita | The person aggrieved. Where she is a wife, a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter, or with the leave of the Court by any other person related to her by blood, marriage or adoption. Where she is under eighteen, of unsound mind, or unable to appear, similar provision is made |
Section 220 | Cruelty by a husband or his relatives to a woman | On a police report of facts constituting the offence, or on a complaint by the person aggrieved or by her father, mother, brother, sister, or by her father’s or mother’s brother or sister, or with the leave of the Court by any other person related to her by blood, marriage or adoption. No Court shall take cognizance after the expiry of three years from the date of the offence |
Section 221 | The specified offence of sexual intercourse by a husband with his wife during separation | Only upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband |
Section 222 | Defamation | Only upon a complaint made by some person aggrieved. Where the person aggrieved is a public servant in respect of conduct in the discharge of his public functions, a Court of Session may take cognizance without commitment upon a complaint made by the Public Prosecutor, with the sanction the section requires |
The common principle is that these are offences in which the injury is personal and the decision whether to prosecute properly belongs to the person injured. A prosecution for defamation at the instance of a stranger, or for an offence against marriage at the instance of a person with no connection to the marriage, would turn a private wrong into a public weapon. The exceptions permitting relatives to complain exist because the person aggrieved may be in no position to do so.
5. Key Takeaways
The position stated shortly 1. Cognizance is not defined. It means the application of mind to the suspected commission of an offence for the purpose of proceeding. It is of an offence, not an offender. 2. Section 210: cognizance may be taken on a complaint, on a police report (in any mode including electronic mode), or on information from a person other than a police officer or the Magistrate’s own knowledge. 3. A police report founds cognizance whatever its conclusion; the Magistrate takes cognizance of the offence disclosed by the material, not of the officer’s opinion. 4. Where cognizance is taken under clause (c), section 211 entitles the accused, before any evidence is taken, to have the case tried by another Magistrate. 5. Section 213: a Court of Session cannot take cognizance as a court of original jurisdiction unless the case has been committed to it. 6. Section 215: the specified offences relating to contempt of lawful authority require the written complaint of the public servant; those against public justice and relating to documents given in evidence in a proceeding require the complaint in writing of that Court. 7. Section 217: offences against the State require the previous sanction of the Central or State Government. 8. Section 218: an offence by a Judge, Magistrate or public servant committed while acting or purporting to act in the discharge of official duty requires previous sanction. The test is a reasonable connection between the act and the duty: Matajog Dobey. 9. The Sanhita adds that the sanction must be decided within one hundred and twenty days, failing which it is deemed to have been accorded. That is new. 10. The protection extends to the stage of ordering an investigation (Anil Kumar v. M.K. Aiyappa), and section 175(4) now provides a special procedure requiring a report from the superior officer and consideration of the public servant’s assertions. |
6. Frequently Asked Questions
What does taking cognizance mean?
The application of the Magistrate’s mind to the suspected commission of an offence for the purpose of proceeding under the provisions that follow. It is not defined in the Sanhita, and it is taken of an offence and not of an offender.
What are the three modes of taking cognizance?
On receiving a complaint of facts constituting the offence; on a police report of such facts, submitted in any mode including electronic mode; and on information received from a person other than a police officer, or on the Magistrate’s own knowledge: section 210(1).
Can a Court of Session take cognizance directly?
Not as a court of original jurisdiction, unless the case has been committed to it by a Magistrate: section 213, except where the Sanhita or another law expressly provides otherwise. One such exception is the prosecution of defamation of a public servant under section 222, where a Court of Session may take cognizance without commitment on the complaint of the Public Prosecutor.
When is sanction required to prosecute a public servant?
Where the offence is alleged to have been committed while he was acting or purporting to act in the discharge of his official duty. The test is whether there is a reasonable connection between the act complained of and the discharge of duty, such that he could make a reasonable and not a pretended claim to have acted in the course of it: Matajog Dobey.
What is new about section 218?
The requirement that the Government decide the request for sanction within one hundred and twenty days, and the provision that on the expiry of that period without a decision the sanction shall be deemed to have been accorded. Under the CrPC a request could remain undecided indefinitely.
Can a Magistrate order an investigation against a public servant without sanction?
No, where the offence is alleged to have been committed in the discharge of his official duties: Anil Kumar v. M.K. Aiyappa. Section 175(4) now additionally requires the Magistrate to consider a report from the superior officer and the assertions of the public servant before making such an order.
Related Topics
- Cognizance and the Framing of a Charge Distinguished
- Complaints to Magistrates: Sections 223 to 226, BNSS
- Commencement of Proceedings: Sections 227 to 233, BNSS
- Territorial Jurisdiction of Criminal Courts: Sections 197 to 209
- Final Report and the Magistrate’s Options
- The Public Prosecutor under the BNSS, 2023