Bharatiya Nagarik Suraksha Sanhita, 2023
Section 223
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.
Why this exists
This provision descends from Section 200 of the old Code of Criminal Procedure, which required Magistrates to screen private complaints by examining the complainant and witnesses on oath, so that frivolous or false complaints could be filtered out before an accused is dragged into court. The requirement to hear the accused before cognizance and the entirely new sub-section (2) — requiring a public servant's explanation and a superior officer's report before proceeding against them for official acts — reflects growing concern about misuse of criminal complaints to harass police officers, bureaucrats and other officials for actions taken in the course of duty, while still allowing genuine grievances to be examined.
How courts read it
Under the earlier, similarly worded Section 200 CrPC, courts repeatedly held that examination of the complainant and witnesses on oath is a mandatory pre-condition, not a mere formality, before a Magistrate can issue process — for instance, the Supreme Court in Vijay Dhanuka v. Najima Mamtaj emphasised that skipping this step where required vitiates the proceedings. Courts also clarified that the purpose of this examination is only to decide whether there is sufficient ground to proceed, not to conduct a mini-trial. Since sub-section (2) is a new addition in the BNSS, 2023, with no established body of case law yet, how courts will interpret its 'opportunity to explain' and 'superior officer's report' requirements remains to be seen.
Common misconceptions
- Myth: A Magistrate must automatically start a case the moment someone files a complaint.
Fact: The Magistrate must first examine the complainant and witnesses on oath (unless an exception applies) and hear the accused before deciding whether to take cognizance. - Myth: This examination step is just a formality and can be skipped for convenience.
Fact: Courts under the earlier, similarly worded provision have held this examination to be mandatory in the situations it applies to, and skipping it improperly can invalidate the proceedings. - Myth: Public servants can never be prosecuted for actions taken during official duty.
Fact: They can be, but only after they are given a chance to explain and a superior officer's report on the incident is obtained — it's a procedural safeguard, not immunity.