Conditions Requisite for Initiation of Proceedings

Sections 210 to 222 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — previously Sections 190 to 199 of the Code of Criminal Procedure, 1973 (CrPC) — are the gateway provisions of the criminal trial. They tell the court when and how it may take cognizance of an offence; they tell the prosecutor what permissions, sanctions, or pre-conditions must be satisfied before the court’s machinery can move; and they tell the accused what statutory shield, if any, stands between him and the witness box. The chapter is short, dense, and decisive: a defective cognizance taken at the threshold pulls the entire trial down with it.

Three propositions hold the chapter together. First, cognizance is the first judicial act in the case. Second, the modes of cognizance are exhaustive; the Magistrate cannot invent a fourth route. Third, the bar in Section 215 BNSS or the sanction requirement in Section 218 BNSS is not a procedural irregularity but a jurisdictional pre-condition — absent compliance, the cognizance is void.

What is ‘taking cognizance’?

The Code does not define ‘cognizance’. The Supreme Court has — and the formulation has held since 1951. In R.R. Chari v. State of U.P., AIR 1951 SC 207, the Court held that taking cognizance occurs when the Magistrate applies his mind to the contents of the complaint, the police report, or the information, for the purpose of proceeding under Chapter XV (now Chapter XVI BNSS). Application of mind to a different purpose — ordering investigation under Section 175(3) BNSS, issuing a search warrant, returning a chargesheet for want of material — is not cognizance.

The post-Chari case law has refined the formulation. In Narayandas v. State of W.B., AIR 1959 SC 1118, the Court added that no formal act is required; the act of cognizance is internal and inferred from the order. In Lakshminarayana Reddy v. Narayana Reddy, AIR 1976 SC 1672, the Court fixed the operational test: cognizance is taken when the Magistrate proceeds under Section 223 BNSS (previously Section 200 CrPC) to examine a complainant, or under Section 227 BNSS (previously Section 204 CrPC) to issue process. Anything earlier — ordering investigation, requiring a report from the police — is pre-cognizance.

The Supreme Court in Bhushan Kumar v. State (NCT of Delhi), AIR 2012 SC 1747 reiterated that cognizance is the application of judicial mind to the averments in the complaint or police report. The Magistrate must be satisfied that there is sufficient ground for proceeding, not for conviction. The latter is a trial-end question. The full architecture of the criminal process is mapped in the present Code of Criminal Procedure notes; the detailed walkthrough of how a complaint moves from filing to issue of process is in the complaint procedure chapter.

Section 210 BNSS — the three modes of cognizance

Section 210(1) BNSS empowers any Magistrate of the first class — or any second-class Magistrate specially empowered by the Chief Judicial Magistrate — to take cognizance of any offence:

1. (a) upon receiving a complaint of facts which constitute such offence (the BNSS adds ‘including any complaint filed by a person authorised under any special law’);
2. (b) upon a police report of such facts (the BNSS adds ‘submitted in any mode including electronic mode’);
3. (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

The 1973 Code dropped the words ‘or suspicion’ from clause (c). The Magistrate cannot take cognizance on his suspicion alone — he requires actual knowledge or actual information. The BNSS keeps this rule.

The three modes are exhaustive. Safi v. State of W.B., AIR 1966 SC 69 held that where the conditions of Section 190 (now Section 210) are not satisfied, the court has no jurisdiction to try the offence. The corollary is that an order purporting to take cognizance under a non-existent ‘fourth mode’ — for example, suo motu cognizance based on a newspaper report — falls outside Section 210 unless the Magistrate brings the report within clause (c) by treating it as ‘information’ from a person other than a police officer.

Section 210 vs Section 175(3) — the pre-cognizance / cognizance divide

Section 210 BNSS is the cognizance section; Section 175(3) BNSS (previously Section 156(3) CrPC) is the pre-cognizance investigation section. The Supreme Court in Tula Ram v. Kishore Singh, AIR 1977 SC 240 mapped the divide: even after a complaint is filed under Section 210(1)(a), the Magistrate may, before taking cognizance, direct an investigation under Section 175(3) BNSS. But once he has taken cognizance — by examining the complainant or issuing process — he cannot retreat to Section 175(3); the only investigative tool then is Section 226 BNSS (previously Section 202 CrPC).

The distinction is procedurally consequential. A Section 175(3) direction starts a police investigation that ends in a chargesheet under Section 193 BNSS, on which fresh cognizance under Section 210(1)(b) is taken. A Section 226 inquiry is part of the post-cognizance process; the Magistrate either issues process or dismisses the complaint on the basis of the inquiry. The detailed treatment of the police-led pathway is in the police investigation powers chapter; the FIR-trigger that begins it is treated in the FIR and Zero FIR chapter.

Section 211, 212 BNSS — transfer and making-over

Section 211 BNSS (previously Section 191 CrPC) is a safeguard against bias. Where a Magistrate takes cognizance under clause (c) of Section 210(1) — on his own knowledge or on information — the accused has the right, before any evidence is taken, to require that the case be transferred to another Magistrate. The right is absolute; the Magistrate must transfer. The aim is to prevent the Magistrate who knew the offence personally from also trying it.

Section 212 BNSS (previously Section 192 CrPC) is the administrative provision: any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him. The detailed framework for inter-court transfer of cases — including transfer between sessions divisions and to the High Court — sits in the transfer of criminal cases chapter.

Section 213 BNSS — cognizance by Court of Session

Section 213 BNSS (previously Section 193 CrPC) prohibits a Court of Session from taking cognizance of any offence as a court of original jurisdiction unless the case has been ‘committed’ to it by a Magistrate, or unless the Code expressly provides otherwise. The committal route under Section 232 BNSS (previously Section 209 CrPC) is the principal mode; statutory exceptions exist for specific offences (criminal contempt under Section 379 BNSS; certain offences under the SC/ST Act; certain offences under the POCSO Act tried by Special Courts).

The corollary is that the Sessions Court cannot directly entertain a private complaint, even where the offence is exclusively triable by it. The complainant must approach the Magistrate of first class, who takes cognizance under Section 210(1)(a) and then commits under Section 232. The full architecture of the sessions trial is in the trial before Sessions Court chapter.

Section 215 BNSS — the bar of the public-officer-court complaint

Section 215 BNSS (previously Section 195 CrPC) is the most heavily litigated bar. It restricts the Magistrate’s power to take cognizance of three classes of offence:

1. Section 215(1)(a): offences punishable under Sections 206 to 223 BNS (previously Sections 172 to 188 IPC) — contempt of lawful authority of public servants — cognizance only on the complaint in writing of the public servant concerned, or of some other public servant authorised by him (the BNSS-added words).
2. Section 215(1)(b)(i): offences punishable under Sections 229 to 233 BNS, Section 236, 237 BNS (previously Sections 193 to 196, 199, 200, 205 to 211, 228 IPC) when committed in or in relation to any proceeding in any court — cognizance only on the complaint of that court or of an authorised superior court.
3. Section 215(1)(b)(ii): offences described in Section 336(1) BNS (previously Section 463 IPC) and offences under Sections 340(2), 341 BNS (previously Sections 471, 475, 476 IPC) when committed in respect of a document produced or given in evidence in a proceeding in any court — cognizance only on the complaint of that court.

The leading authority is Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, which overruled Sachida Nand Singh on the territorial reach of Section 195 CrPC. The Constitution Bench held that the bar applies only where the document was forged after it was produced or given in evidence in court — if the forgery was prior to its production, the bar does not attach. The case is the standard MCQ on Section 215 BNSS.

Two ancillary points. First, the bar is jurisdictional. Cognizance taken in violation of Section 215 is void; the trial that follows is a nullity. Second, the bar can be cured by a fresh complaint by the public servant or court. The Magistrate cannot, however, dispense with the bar by reading the requirement as directory.

Section 216 BNSS — threatening of witnesses

Section 216 BNSS (previously Section 195A CrPC) is a special provision for offences under Section 206 BNS (previously Section 195A IPC, threatening any person to give false evidence). The witness threatened may himself file a complaint; the bar in Section 215 does not apply. The provision was added by the 2008 CrPC amendment to give the witness a direct route to court without waiting for police action; the BNSS retains it.

Section 217 BNSS — offences against the State

Section 217 BNSS (previously Section 196 CrPC) bars cognizance of offences against the State and of criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or the State Government, as the case may be. The provision covers offences under Sections 147 to 158 BNS (waging war, sedition, offences against the State, previously Sections 121 to 130 IPC), and offences under Sections 153 to 163 BNS, the public-tranquillity chapter.

The constitutional question whether sedition under the (now-repealed) Section 124A IPC could be prosecuted, and whether Section 152 BNS (treason against the State) raises similar issues, has surfaced repeatedly. In Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 the Court read Section 124A narrowly to save it constitutionally; the BNSS replacement language has not yet had a constitutional bench ruling. The sanction route under Section 217 is the procedural gate.

Section 218 BNSS — sanction to prosecute judges and public servants

Section 218 BNSS (previously Section 197 CrPC) is the chapter’s most heavily contested provision. It bars a court from taking cognizance of an offence allegedly committed by a public servant, who is removable from office only by or with the sanction of the Government, except with the previous sanction of the appropriate Government — where the offence is alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.

Three points define the section’s reach.

First — the ‘official duty’ nexus. The act complained of must have a reasonable connection with the discharge of the public servant’s official duty. The classic formulation is Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 — the test is whether the public servant could reasonably claim to be acting in the discharge of his official duty, even if mistakenly. A police officer who beats a suspect in custody has the nexus; a police officer who beats his neighbour over a private dispute does not.

Second — sanction is jurisdictional. The Supreme Court in Subramanian Swamy v. Manmohan Singh, AIR 2012 SC 1185 and Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 held that cognizance taken without sanction, where sanction is required, is a nullity. The court must determine, on the face of the complaint and the materials, whether the act falls within the nexus; if it does, sanction is mandatory.

Third — the BNSS deemed-sanction proviso. The most consequential change in the BNSS is the second proviso to Section 218(1)(b): the Government must take a decision on the sanction request within 120 days of receipt; if no decision is taken, sanction is deemed to have been accorded. The proviso responds to a long-standing complaint that sanction requests against public servants were used to delay prosecutions indefinitely. The candidate must remember the 120-day period and its ‘deemed sanction’ consequence.

The companion provision in special statutes — Section 19 of the Prevention of Corruption Act, 1988 — has its own sanction regime, with similar but distinct triggers. The interplay is treated more fully in the dedicated specialised-statutes chapters.

Section 219 BNSS — offences against marriage

Section 219 BNSS (previously Section 198 CrPC) bars cognizance of offences punishable under Sections 81 to 84 BNS (offences against marriage; previously Sections 493 to 498 IPC) except on a complaint by the person aggrieved by the offence. The aggrieved-person rule is statutory shorthand for the principle that these offences are essentially private wrongs, and the State will not prosecute on its own.

The BNSS substitutes ‘child’ for ‘minor’ and replaces the older language ‘is an idiot, or a lunatic’ with ‘is of unsound mind or is having intellectual disability requiring higher support needs’. The substantive scheme — husband, wife, certain near relations, and others authorised by the court may file the complaint — is preserved.

Sections 220, 221 BNSS — cruelty under 498A and other special offences

Section 220 BNSS (previously Section 198A CrPC) keeps the rule that cognizance of an offence under Section 85 BNS (previously Section 498A IPC, cruelty by husband or relatives) is taken only on a police report or on a complaint by the aggrieved person or her near relative. Section 221 BNSS (previously Section 198B CrPC) bars cognizance of an offence under Section 67 BNS (sexual intercourse by husband upon wife during separation, previously Section 376B IPC) except on a complaint by the wife.

The provisions reflect the legislative concern that prosecutions in matrimonial matters not be triggered by strangers; the policy choice has been preserved through every codification, including the BNSS.

Cognizance and the Magistrate’s judicial mind

Even where the procedural gates are clear, the Magistrate must apply judicial mind. Three doctrines have emerged from the case law.

The ‘sufficient ground for proceeding’ standard. At the cognizance stage, the Magistrate is not weighing evidence for conviction; he is asking whether the averments, if true, would constitute an offence. Bhushan Kumar v. State (NCT of Delhi), AIR 2012 SC 1747; Ajay Kumar Parmar v. State of Rajasthan, AIR 2013 SC 633.

Reasoned order. The order taking cognizance need not be elaborate, but it must reflect application of mind. A formulaic recital that ‘the offence is made out’ without reference to the materials is reversible.

No appreciation of evidence. Cognizance is not a mini-trial. The Magistrate cannot at this stage examine the credibility of witnesses, weigh probabilities, or hold against the complainant. Where the police have filed a chargesheet, the Magistrate may differ from the police view — he may take cognizance of additional offences disclosed in the report or refuse cognizance on offences charged — but he does so on the basis of the materials before him, not on a substituted view of the evidence.

Cognizance and the right of the accused to be heard — the BNSS innovation

The BNSS introduces a structural change to the cognizance process. The newly added first proviso to Section 223(1) BNSS (the complaint-examination section) provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. The proviso has not been repeated in Section 210 BNSS itself, but the practical effect is that, on private complaints, the accused must be heard before cognizance is taken.

For complaints against public servants, sub-section (2) of Section 223 BNSS goes further: cognizance cannot be taken unless the public servant is given an opportunity to make assertions on the situation, and a report containing the facts is received from the superior officer. The two-tier safeguard mirrors Section 218 BNSS at the threshold and is calibrated to filter out weaponised complaints. The detailed procedural walk-through is set out in the Section 223 BNSS examination of complainant chapter.

Limitation under Sections 514 to 520 BNSS

Cognizance may itself be barred by limitation. Sections 514 to 520 BNSS (previously Sections 467 to 473 CrPC) prescribe outer limits within which cognizance must be taken: six months for offences punishable with fine only; one year for offences punishable up to one year; three years for offences punishable up to three years. Above three years, no statutory limitation applies. The BNSS adds an explanation that the relevant date for computing limitation is the date of filing the complaint under Section 223 BNSS or the date of recording information under Section 173 BNSS — whichever is earlier.

The Magistrate is required to determine, at the stage of cognizance, whether limitation bars the prosecution. The court may extend limitation under Section 519 BNSS (previously Section 473 CrPC) on facts. The full doctrinal treatment is in the limitation for cognizance chapter.

Effect of defective cognizance

The consequences of a flaw at the cognizance stage are severe.

Cognizance by an unauthorised Magistrate. Section 210 reserves the cognizance power to a Magistrate of the first class or specially empowered second-class Magistrate. A second-class Magistrate without empowerment cannot take cognizance; the order is void; the trial is vitiated. The hierarchy is set out in the constitution of criminal courts chapter.

Cognizance without sanction. Where Section 218 BNSS sanction is required and not obtained, cognizance is void. The court’s subsequent orders, including issue of process, conviction, and sentence, fall with the cognizance: State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222.

Cognizance contrary to Section 215 BNSS. The bar on cognizance of offences against public justice without the court’s complaint is jurisdictional; cognizance taken without compliance is void.

Curable irregularities. Some defects are saved by Section 510 BNSS (previously Section 465 CrPC) on irregularities — e.g., a clerical mis-recording in the cognizance order. The dividing line between ‘jurisdictional defect’ and ‘mere irregularity’ is the most contested area in the section, and the candidate must learn the precise categories. The High Court’s Section 528 BNSS inherent power is the principal corrective for jurisdictional defects.

BNSS comparison — what changed

The BNSS makes four substantive additions to the cognizance chapter, while leaving the architecture intact.

1. Section 210 BNSS permits complaints filed by ‘a person authorised under any special law’ and police reports submitted ‘in any mode including electronic mode’.
2. Section 215 BNSS permits the public servant to authorise another to file the contempt complaint.
3. Section 218 BNSS introduces the 120-day deemed-sanction proviso.
4. Section 223 BNSS introduces the right of the accused to be heard before cognizance, and the two-tier safeguard for complaints against public servants.

The case law on Section 190 CrPC carries forward unchanged to Section 210 BNSS. R.R. Chari, Tula Ram, Bhushan Kumar, Iqbal Singh Marwah, Subramanian Swamy, Anil Kumar v. M.K. Aiyappa — all good law under the new Code.

Exam-angle takeaways

Five points that exam-setters reuse with relentless regularity.

1. Three modes of cognizance, no fourth. Section 210(1) BNSS is exhaustive; suspicion is not a ground; suo motu cognizance must be brought within clause (c).
2. Section 175(3) and Section 210 are mutually exclusive. Once cognizance is taken, only Section 226 BNSS investigation is available; the Magistrate cannot retreat to Section 175(3).
3. Section 215 bar is jurisdictional, not merely procedural. A cognizance taken in violation is void.
4. Section 218 sanction must reflect the ‘official duty’ nexus. The 120-day deemed-sanction proviso is the BNSS innovation.
5. Sessions Court cognizance only on commitment. Direct private complaints to the Sessions Court are not maintainable except where the Code expressly provides otherwise.

The cognizance chapter is the trial’s threshold — learn the gates, learn the gatekeepers. A long-form mains answer should lead with the three modes, walk through the public-justice and public-servant bars, finish with the BNSS additions on deemed sanction and the right of the accused to be heard, and tie the threads together with the limitation and inherent-power overlays. A prelims MCQ is most likely to pivot on the cognizance / investigation distinction, the Iqbal Singh Marwah rule, or the new BNSS deemed-sanction window. The closing committal-and-charge stage is treated separately in the framing of charge chapter and the warrant-trial procedure in the warrant trial by Magistrate chapter.

Frequently asked questions

When does a Magistrate ‘take cognizance’ for the purposes of Section 210 BNSS?

Cognizance is taken when the Magistrate applies his mind to the contents of the complaint, the police report, or the information, for the purpose of proceeding under Chapter XVI BNSS (examination of the complainant, issue of process, etc.). The leading authority is R.R. Chari v. State of U.P., AIR 1951 SC 207, refined in Lakshminarayana Reddy v. Narayana Reddy, AIR 1976 SC 1672. Application of mind for a different purpose — ordering investigation under Section 175(3) BNSS, issuing a search warrant, returning a chargesheet for want of material papers — does not constitute cognizance.

Can a Magistrate direct investigation under Section 175(3) BNSS after taking cognizance of a complaint?

No. The Supreme Court in Tula Ram v. Kishore Singh, AIR 1977 SC 240 held that Section 156(3) (now Section 175(3) BNSS) and Section 190 (now Section 210 BNSS) operate in mutually exclusive spheres. Before cognizance, the Magistrate may direct investigation; after cognizance, the only investigative tool is Section 226 BNSS (post-cognizance inquiry by the Magistrate himself or by police direction). A Magistrate who has issued process cannot retreat to Section 175(3); he must proceed to trial or dismiss the complaint.

When does the bar in Section 215 BNSS attach to a forgery prosecution?

Only where the document was forged after it was produced or given in evidence in court. The Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 settled the divide: a forgery committed before production in court can be prosecuted on a private complaint, without the court’s complaint under Section 215. A forgery committed after production is barred unless the court itself files the complaint. The case overruled the contrary Sachida Nand Singh view and is the standard MCQ on the section.

What is the ‘official duty’ test for sanction under Section 218 BNSS?

The act complained of must have a reasonable connection with the discharge of the public servant’s official duty. The classical test is Matajog Dobey v. H.C. Bhari, AIR 1956 SC 44 — the public servant must be able reasonably to claim that the act, even if mistaken, was done in the course of his duty. A police officer who fires on protesters in a riot has the nexus; a police officer who beats a private creditor over an unpaid loan does not. The Subramanian Swamy v. Manmohan Singh, AIR 2012 SC 1185 and Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 line treats sanction as jurisdictional.

What is the BNSS’s 120-day deemed-sanction proviso?

The second proviso to Section 218(1)(b) BNSS — new in 2023 — requires the Government to take a decision on a request for sanction within 120 days of receipt. If no decision is taken within that period, sanction is ‘deemed to have been accorded’. The provision targets the long-standing problem of indefinite delay in sanction decisions, which had effectively shielded public servants from accountability. The 120-day period runs from receipt of a complete sanction request; the Government’s response, if any, must be reasoned and within the window.

Can a Court of Session take cognizance of an offence directly?

Generally no. Section 213 BNSS (previously Section 193 CrPC) bars the Sessions Court from taking cognizance as a court of original jurisdiction unless the case has been committed to it by a Magistrate under Section 232 BNSS, or unless the Code expressly provides otherwise. Statutory exceptions exist for certain Special Courts — under the SC/ST Act, the POCSO Act, and the NIA Act — which can take cognizance directly under their constitutive statutes. For ordinary offences, the route runs through the Magistrate, even where the offence is exclusively triable by the Sessions Court.