BNSS Complaint Before Magistrate Sections 223 to 232 Explained
Complaint Before Magistrate under BNSS 2023 (Sections 223–232) Procedure
A complaint before a Magistrate is one of the recognized modes by which the criminal law machinery is set in motion, especially in Cognizable cases or cases where the police do not initiate action on their own. It empowers a private individual (complainant) to directly approach a Judicial Magistrate alleging the commission of an offence and seeking judicial intervention.
Unlike cases based on police reports (FIR cases), a complaint case begins without a prior police investigation, unless the Magistrate subsequently directs investigation.
A complaint may relate to cognizable or non-cognizable offences. Upon receiving a complaint, the Magistrate applies judicial mind and may:
- take cognizance of the offence,
- examine the complainant and witnesses,
- order police investigation, or
- dismiss the complaint if no sufficient ground exists.
Complaint
Section 2(1)(h) defines complaint as 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.
Essential Ingredients of a Complaint
For an allegation to qualify as a complaint, the following elements must be present:
- Allegation - There must be an assertion of facts. Mere suspicion or vague information is not sufficient.
- Made to a Magistrate - The complaint must be addressed only to a Magistrate.
- Oral or Written - No prescribed format is mandatory. It may be in oral or in writing.
- Intention to Set Criminal Law in Motion - The complaint must be made with a view to the Magistrate taking action under the Sanhita. If information is given for mere inquiry or record, it is not a complaint.
- Commission of an Offence - The allegation must disclose the commission of an offence.
- Accused May Be Known or Unknown - The identity of the offender need not be certain at the time of filing the complaint.
Whether Complaint includes Police Report
A police report which discloses commission of cognizable offence after the investigation is expressly excluded i.e, it does not constitute complaint.
However, as per explanation to Section 2 (1)(h), 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. In such cases a police officer submitting the report is deemed to be a complainant.
COMPLAINTS TO MAGISTRATES (CHAPTER XVI)
Section 223 lays down the procedure to be followed by a Magistrate at the stage of taking cognizance of an offence on a complaint. It balances judicial scrutiny, protection against frivolous complaints, and fairness to the accused.
Mandatory Duties of Magistrate while taking Cognizance on Complaint
1. Examination of Complainant while taking Cognizance
According to Section 223, When a Magistrate has jurisdiction and takes cognizance of an offence on a complaint he is required to examine the complainant and the witnesses present (if any) on oath.
Purpose - To test the truthfulness of allegations and to filter out vexatious or baseless complaints.
Exceptions to Examination
If the complaint is in writing, the Magistrate need not examine the complainant and witnesses in the following cases:
A) Complaint by Public Servant or Court
When the complaint is made by a Public Servant acting or purporting to act in discharge of official duties or Court there is a presumption of official responsibility and credibility.
B) Transfer to Another Magistrate (Section 212)
When the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Reason - To avoid duplication of proceedings.
2. Recording of Substance of Examination
The substance of the examination must be reduced to writing.
3. Mandatory Signatures
The written record must be signed by the complainant, the witnesses, and the Magistrate.
Complaint to Magistrate not competent to take Cognizance (Section 224)
If a complaint is made to a Magistrate who is not competent to take cognizance, the Magistrate shall not dismiss the complaint. Instead, he must guide the complainant to the proper Court.
When Complaint Is in Writing - The Magistrate shall return the complaint, and endorse that it is being returned for presentation to the proper Court.
When Complaint Is Oral - The Magistrate shall direct the complainant to approach the proper Court.
Postponement of Issue of Process (Section 225)
After taking cognizance of a complaint, the next stage is to issue a process against the accused i.e, issuance of summons or warrant against the accused.
However, Section 225 provides that the Magistrate may temporarily withhold issuing summons/warrant in order to first satisfy himself that there is sufficient ground to proceed. This is called the stage of postponement of the issue of process. This provision acts as a judicial filter before the accused is formally summoned.
Power to postpone the issue of process - Mandatory or Discretionary
Generally it is a discretionary power of the Magistrate. However, in cases where the accused resides beyond the territorial jurisdiction of the Magistrate, postponement of issue of process becomes mandatory.
Purpose of Postponement of Issue of Process
- To verify the truth and sufficiency of allegations.
- To prevent false, vexatious, or frivolous complaints.
- To ensure that the criminal process is not misused as a tool of harassment.
Options before the Magistrate during Postponement
Magistrate has two options:
1. Inquiry by the Magistrate Himself
The Magistrate may conduct the inquiry by examining the witnesses and assessing the material on record.
During inquiry, the Magistrate may take evidence on oath, if he thinks fit.
Special Rule for Session Triable Offences
If the offence is exclusively triable by the Court of Session, the Magistrate must call upon the complainant to produce all witnesses, and examine them on oath. This is done in order to ensure a strong prima facie case before committing the matter to Sessions Court.
2. Direct Investigation
The Magistrate may direct a police officer, or any other person (as deemed fit) to conduct an investigation.
Limitations on Direction for Investigation
The Magistrate cannot direct investigation in the following situations:
- Offences triable exclusively by the Court of Session
- Non-Examination under Section 223 - If the complaint is not made by a Court, and the complainant and witnesses have not been examined on oath.
(In the above circumstances, only inquiry can be conducted)
Dismissal of Complaint or Issue of Process
After examination of the complainant and witnesses (Section 223), and inquiry or investigation, if any (Section 225), the Magistrate must choose one of two paths after applying judicial mind, either to:
- dismiss the complaint, or
- proceed against the accused by issuing process.
Dismissal of Complaint (Section 226)
If, after considering statements on oath of the complainant and witnesses (if any), and the result of inquiry or investigation under Section 225 (if conducted), the Magistrate forms the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint.
The Magistrate must briefly record reasons for dismissing the complaint.
Issue of Process (Section 227)
“Issue of process” means issuing summons or warrants to the accused, thereby formally initiating criminal proceedings against him.
If the Magistrate is of the opinion that there is sufficient ground for proceeding, he shall issue process against the accused.
Type of Process (depends on nature of the case):
- Summons Case - Magistrate shall issue summons for the appearance of the accused.
- Warrant Case - Magistrate may issue a warrant, or a summons, if he thinks fit. Even in warrant cases, summons may be preferred depending on circumstances.
Pre-Conditions Before Issue of Process:
- Filing of List of Prosecution Witnesses
No summons or warrant shall be issued against the accused until a list of the prosecution witnesses has been filed.
- Copy of Complaint to Accused
If the complaint was made in writing, every summons or warrant shall be accompanied by a copy of such complaint.
Attendance of accused (Section 228)
The Magistrate may dispense with personal attendance of the accused, and permit appearance through an advocate. It is usually granted in minor offences or when the accused is old, infirm or residing at a distant place.
However, at any stage of proceedings, the Magistrate may direct personal attendance of the accused.
Supply of Documents
The supply of documents to the accused is mandated to uphold the principles of fair trial and natural justice. It ensures that the accused is fully informed of the case against him at the earliest stage, enabling him to prepare an effective defence and preventing trial by surprise.
Supply of Documents in Police Report Cases (Section 230)
Time limit - Documents must be supplied within 14 days from the date of appearance or production of the accused.
What Documents Are Supplied?
- Police report (charge-sheet),
- FIR,
- Statements of prosecution witnesses,
- Confessions and statements recorded during investigation,
- All documents relied upon by prosecution and forwarded to Magistrate.
Supply of Documents in Complaint Cases (Section 231)
Following documents are supplied to accused:
- Statements recorded by Magistrate,
- Statements and confessions recorded during inquiry,
- Documents relied upon by prosecution.
Committal to Court of Session (Section 232)
When the Magistrate finds that the offence is triable exclusively by the Court of Session, he must commit it to the Court of Session.
Duties of Magistrate at Committal Stage
The Magistrate must:
- First comply with Section 230 (police report cases), or Section 231 (complaint cases), and then commit the case to the Court of Session.
- Remand the accused to custody, subject to bail provisions.
- Send the entire record, documents, and articles to Sessions Court.
- Inform the Public Prosecutor about the committal.
Time Limit for Committal
Proceedings must be completed within 90 days from taking cognizance. It can be extended up to 180 days after recording reasons.
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