Complaints to Magistrates — Procedure, Examination, Issue of Process

Sections 223 to 228 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — previously Sections 200 to 205 of the Code of Criminal Procedure, 1973 (CrPC) — describe the complaint route to the criminal trial. The route is independent of the police: a private person aggrieved by an offence may approach the Magistrate directly, the Magistrate examines the complainant on oath, decides whether to issue process, and the trial begins. The chapter is short and procedurally exact, and the BNSS has added two structural safeguards that change the way the Magistrate must work.

The first BNSS innovation is the right of the accused to be heard before cognizance — a quiet but consequential proviso to Section 223(1). The second is the two-tier safeguard for complaints against public servants: the public servant must be heard, and a superior officer’s report must be obtained, before cognizance can be taken. These additions transform Section 223 from a unilateral cognizance section into a structured pre-cognizance hearing.

Statutory anchor and scheme

The complaint chapter sits within Chapter XVI BNSS. Its sections describe a single procedural arc: the complaint is filed, the complainant is examined, the Magistrate decides between three exits (issue of process, further inquiry, or dismissal), and the matter either crosses into the trial proper or stops at the threshold. The arc is:

1. Section 223 BNSS (previously Section 200 CrPC) — examination of the complainant on oath; the new accused-hearing proviso; the public-servant safeguard.
2. Section 224 BNSS (previously Section 201 CrPC) — procedure where the Magistrate is not competent to take cognizance.
3. Section 225 BNSS (previously Section 202 CrPC) — postponement of issue of process; pre-process inquiry by the Magistrate or by police direction.
4. Section 226 BNSS (previously Section 203 CrPC) — dismissal of the complaint.
5. Section 227 BNSS (previously Section 204 CrPC) — issue of process: summons or warrant; the BNSS proviso permitting electronic process.
6. Section 228 BNSS (previously Section 205 CrPC) — Magistrate’s power to dispense with personal attendance of the accused.

The chapter follows logically from cognizance. A Magistrate cannot examine a complainant under Section 223 unless he has first taken cognizance of the offence under Section 210 BNSS — the relationship is mapped in the conditions requisite for initiation of proceedings chapter, and the broader scheme of the present Code of Criminal Procedure notes places this chapter as the next stop on the complainant’s pathway to trial.

What is a complaint?

Section 2(h) BNSS (previously Section 2(d) CrPC) defines a ‘complaint’ as any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence; but it does not include a police report. The exclusion is the central distinction. Information given to the police that triggers an FIR under Section 173 BNSS is not a ‘complaint’; the same allegation given directly to the Magistrate is. The two routes are mapped in detail in the FIR and Zero FIR chapter.

Three propositions follow.

One, a complaint may be oral or written, and may be made by any person; the complainant need not be the victim. Two, the complainant must intend that the Magistrate take action under the Code — a casual narration in court, or a statement in another proceeding, is not a complaint. Three, an investigation report under Section 193 BNSS treated as a complaint is permissible only where it is treated as a private complaint by the Magistrate (where the police have refused to register the FIR and the Magistrate himself proceeds on the materials available).

Section 223 BNSS — examination of complainant

The opening sub-section is the operative procedural rule:

The examination is the first judicial act after cognizance. Its object is twofold: to ascertain whether there are sufficient grounds for proceeding (Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113), and to put on record the substance of the complainant’s testimony before the accused has had the opportunity to influence it (Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430). The examination is on oath; the substance is reduced to writing; the complainant, the witnesses, and the Magistrate sign.

Three exemptions to oath-examination are preserved:

1. Where the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties, or by a court.
2. Where the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212 BNSS — the new Magistrate need not re-examine.
3. Where the complainant has already been examined by a Magistrate who has made over the case to another Magistrate.

The examination is a judicial process, not a ministerial one. The Magistrate cannot delegate it; he cannot rely on a complainant’s affidavit; he cannot substitute the police statement under Section 180 BNSS for the on-oath examination. Mohd. Yousuf v. Afaq Jahan, (2006) 1 SCC 627 underlined the duty of the Magistrate to apply judicial mind to the on-oath testimony before deciding the next step.

The BNSS proviso — accused right to be heard

The newly added first proviso to Section 223(1) BNSS is the chapter’s most consequential addition:

The proviso reverses a sixty-year-old proposition. The Supreme Court in Chandra Deo Singh had held that the Magistrate, at the cognizance stage of a private complaint, has no obligation to hear the accused; the rationale was that the section was designed to test the prima facie case, not to anticipate trial. The proviso brings the BNSS into line with later natural-justice case law and with the post-Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 line that an accused, once summoned, cannot have the summons recalled by the same court — an outcome that made the pre-summons hearing essential.

The mechanics of the new hearing have not yet been fully mapped by High Court rules, but three propositions are clear from the text. First, the proviso applies to Magistrate-led cognizance under Section 210(1)(a), where the source is a private complaint; it does not apply to police-report cognizance under Section 210(1)(b), where the accused will have his hearing at the framing-of-charge stage. Second, the ‘opportunity’ need not be a full evidentiary hearing — written submissions and oral arguments suffice. Third, the accused is not entitled to lead evidence at this stage; the inquiry is limited to whether there are sufficient grounds for proceeding.

Section 223(2) BNSS — complaints against public servants

The second new sub-section is the two-tier safeguard for complaints against public servants:

The provision parallels Section 218 BNSS sanction, but operates earlier and at a different level. Where Section 218 requires Government sanction for the prosecution of certain public servants, Section 223(2) requires the public servant’s own assertions and his superior’s report. The two safeguards are cumulative: a complaint against a covered public servant must satisfy both. The detailed sanction architecture is in the initiation of proceedings chapter.

The provision targets the experience that bona fide official decisions were being treated as crimes by aggrieved private parties. The safeguard does not extend to private acts of public servants — the ‘official functions or duties’ nexus is the same as the Matajog Dobey test for sanction. A public servant who beats his neighbour over a private dispute does not get the safeguard; a tax officer whose assessment order is alleged to be malicious does.

Section 224 BNSS — when the Magistrate is not competent

Section 224 BNSS (previously Section 201 CrPC) handles the case where the complaint is presented to a Magistrate who is not competent to take cognizance. If the complaint is in writing, the Magistrate returns it for presentation to the proper court, with an endorsement; if oral, he directs the complainant to the proper court. The provision is administrative; it cannot be used to dismiss a complaint on merit. The proper court’s jurisdiction is determined by the place of occurrence under Section 197 BNSS and the offence’s triability under the schedule. The Magistrate hierarchy that drives competence is set out in the constitution of criminal courts chapter.

Section 225 BNSS — postponement of issue of process

Section 225 BNSS (previously Section 202 CrPC) is the diagnostic engine. After cognizance and the Section 223 examination, the Magistrate may, before issuing process, either himself inquire into the case or direct an investigation 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. The investigation directed under Section 225 is post-cognizance, not the Section 175(3) BNSS pre-cognizance investigation; the two are mutually exclusive.

The proviso restricts the Magistrate’s investigative options. Where the offence is exclusively triable by the Court of Session, no direction for investigation by police can be made; the Magistrate must conduct the inquiry himself or by another Magistrate. The Magistrate must, in such cases, call upon the complainant to produce all his witnesses and examine them on oath. The provision is a safeguard against frivolous private complaints in serious offences.

A complaint must also be filed within the limitation prescribed by the limitation for cognizance rules in Sections 514 to 520 BNSS, computed from the date of the complaint. The Section 225 inquiry is not a trial. The Magistrate is not weighing the credibility of witnesses or the probabilities of the prosecution case. He is asking only whether, on the materials before him, there is sufficient ground for proceeding. Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 laid down four categories where the issue of process may be quashed at the threshold — absurdity of allegations, no offence on the face, malicious motive, and bar by statute. The case is the standard MCQ on Section 225 BNSS.

Section 226 BNSS — dismissal of complaint

Section 226 BNSS (previously Section 203 CrPC) is the off-ramp. If, after considering the statements on oath of the complainant and the witnesses, and the result of any inquiry or investigation under Section 225, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint and record his reasons. The dismissal must be reasoned; a perfunctory order is liable to be set aside in criminal revision under Section 442 BNSS or under the High Court’s Section 528 BNSS inherent power.

An order of dismissal under Section 226 is not a bar to a fresh complaint on the same facts — the Supreme Court has consistently held that, on fresh material or on consideration of grounds not previously urged, a fresh complaint is maintainable: Pramatha Nath Talukdar, AIR 1962 SC 876. The fresh complaint should not, however, be a verbatim repetition of the dismissed one without showing what is new.

Section 227 BNSS — issue of process

Section 227 BNSS (previously Section 204 CrPC) is the operational gateway to trial. If, after the Section 223 examination and any Section 225 inquiry, the Magistrate is of the opinion that there is sufficient ground for proceeding, he issues process. In a summons-case, a summons is issued for the attendance of the accused. In a warrant-case, a warrant or a summons is issued at the discretion of the Magistrate, who must record his reasons for choosing one over the other.

The BNSS proviso to sub-section (1) is the digital innovation:

Issue of process by email, by SMS, or through a designated court e-portal is now statutorily permissible. The State’s implementation of e-process will dictate the exact mechanics, but the BNSS provides the umbrella authority. The classification of summons and warrant cases, and the trial procedure that follows each, is set out in the warrant trial by Magistrate chapter and the summons trial by Magistrate chapter.

Sub-section (4) of Section 227 BNSS preserves the requirement that no summons or warrant be issued until a list of prosecution witnesses has been filed. The list-of-witnesses rule is a quiet but practical safeguard against fishing expeditions in private complaints.

Section 228 BNSS — dispensing with personal attendance

Section 228 BNSS (previously Section 205 CrPC) lets the Magistrate, when he issues a summons, dispense with the personal attendance of the accused and permit appearance by an advocate. The exercise is discretionary; the Magistrate must consider the nature of the offence, the social standing of the accused, the distance involved, and the practicality of personal attendance at every hearing. The replacement of ‘pleader’ with ‘advocate’ is the BNSS textual change; the substantive rule is preserved.

The provision is heavily used in cheque-bounce cases under Section 138 of the Negotiable Instruments Act, 1881 — where the accused is often a corporate signatory. The Supreme Court in Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 set out the parameters: the Magistrate may dispense with personal attendance subject to conditions, including production of a vakalatnama and an undertaking to appear when called.

The complaint route vs the FIR route

The two routes lead to overlapping but distinct procedures, and the candidate must keep them apart for MCQ purposes.

Triggering authority. FIR is recorded by the police under the Section 175 BNSS investigation regime; complaint is presented to the Magistrate.

Investigation. FIR triggers police investigation as of right under Section 175 BNSS; complaint may trigger police investigation only if the Magistrate so directs under Section 175(3) (pre-cognizance) or Section 225 (post-cognizance).

Cognizance. FIR-led cases come to the Magistrate via the police report under Section 193 BNSS; complaint cases come directly. In both, cognizance is under Section 210 BNSS; the difference is the route.

Examination of the complainant. Mandatory in complaint cases under Section 223; not applicable in FIR cases (the police take a Section 180 BNSS statement instead).

Issue of process. In complaint cases, after the Section 223 examination and any Section 225 inquiry, under Section 227. In FIR cases, after police-report cognizance, under Section 227 directly.

The two routes are not mutually exclusive: the same offence may be reported in an FIR and also be the subject of a private complaint, and both proceedings can run in parallel until consolidated by the trial court.

Common defects and reversible errors

Three failure modes recur and reward attention.

No oath examination. Where the Magistrate takes cognizance and issues process without the Section 223 examination of the complainant, the cognizance is bad and the process is liable to be quashed: Chandra Deo Singh remains the leading authority. The exemptions for written complaints by public servants and for committed cases are narrow; a private complainant must always be examined on oath.

No reasons in dismissal. Section 226 BNSS requires the Magistrate to record reasons for dismissal. A perfunctory dismissal — ‘complaint dismissed’ without engagement with the materials — is reversible. The companion safeguard against perfunctory cognizance is the recorded order at the issue-of-process stage.

Mixing Section 175(3) with Section 225. The two investigative tools are mutually exclusive. A pre-cognizance Section 175(3) direction and a post-cognizance Section 225 inquiry cannot coexist on the same complaint. Mixing the two is a procedural error; the appellate court will treat the order at its highest as one, not both.

For the candidate, the recall-of-process question is settled: Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 held that a Magistrate has no power to recall process once issued under Section 204 (now Section 227 BNSS). The accused’s remedy is the High Court under Section 528 BNSS or via the framing-of-charge stage at the trial court. The post-issue procedural pathway is set out in the framing of charge chapter.

BNSS comparison — what changed

The BNSS makes three substantive additions to the complaint chapter while leaving the architecture intact.

1. Section 223(1) BNSS — first proviso: no cognizance without giving the accused an opportunity of being heard.
2. Section 223(2) BNSS — new sub-section: two-tier safeguard for complaints against public servants.
3. Section 227(1) BNSS — new proviso: summons or warrant may be issued by electronic communication.

Section 228 substitutes ‘advocate’ for ‘pleader’. Sections 224, 225, and 226 are reproduced without change. The case law on Sections 200 to 205 CrPC continues to govern Sections 223 to 228 BNSS — Vadilal Panchal, Chandra Deo Singh, Smt. Nagawwa, Mohd. Yousuf, Pramatha Nath Talukdar, Adalat Prasad — all good law. The candidate must restate the doctrine in BNSS terms when answering and note the two new safeguards in Section 223 and the digital proviso in Section 227.

Exam-angle takeaways

Five points exam-setters reuse with regularity.

1. Examination of the complainant on oath is mandatory in private complaints. The exemptions are narrow and statutory.
2. The new BNSS proviso requires the accused to be heard before cognizance on a private complaint. This is a structural change; Chandra Deo Singh’s rule that the accused has no role at this stage is overruled by statute.
3. Section 225 BNSS investigation is post-cognizance; Section 175(3) BNSS investigation is pre-cognizance. Mixing them is reversible error.
4. Dismissal under Section 226 BNSS is not res judicata. A fresh complaint on fresh material is maintainable; the bar is on identical re-filing without something new.
5. Process once issued under Section 227 BNSS cannot be recalled by the Magistrate. Adalat Prasad is the standard authority. The accused’s remedy is through the trial process or under inherent power.

The complaint chapter is the small-statutes-rich chapter of the BNSS: every section is short, every section is litigated, and the BNSS additions are calibrated to fix specific structural problems. A long-form mains answer should lead with the Section 2(h) definition, walk through the six-section arc, highlight the two BNSS-additions in Section 223 and the e-process in Section 227, finish with the FIR-vs-complaint comparison and the Adalat Prasad rule on recall. A prelims MCQ will almost always pivot on the oath-examination exemption, the Smt. Nagawwa categories, the recall-of-process bar, or the new accused-hearing proviso. The procedural arc, once memorised, becomes a reliable scaffold for every complaint-related question.