BNSS Sec 223. Examination of Complainant (Complaint to Magistrate)

The Bharatiya Nagarik Suraksha Sanhita, 2023

Section 223. Examination of the 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.

Section 226: If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Here’s an analytical breakdown of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which governs the examination of the complainant during cognizance of an offence based on a complaint:

Section 223 – Examination of Complainant (BNSS, 2023)

Sub-section (1): General Procedure When Magistrate Takes Cognizance on a Complaint

✅ Mandatory Examination:

• When taking cognizance of an offence on a complaint, the Magistrate must examine:
  • The complainant
  • Any witnesses present (if any)
• The examination is to be:
  • On oath
  • Reduced to writing
  • Signed by the complainant, witnesses, and the Magistrate

 Important Proviso: Audi Alteram Partem (Right to Be Heard):

• Magistrate must not take cognizance without giving the accused an opportunity to be heard.

This is a significant procedural safeguard that adds an element of natural justice at the pre-trial stage, which wasn’t explicitly stated in the earlier CrPC.

Exemptions from Mandatory Examination:

Magistrate need not examine the complainant and witnesses if:

(a) The complaint is made by a public servant acting in discharge of official duties or by a court.

(b) The Magistrate has transferred the case under Section 212 (transfer for inquiry/trial to another Magistrate).

Further Clarity:

• If the original Magistrate has already examined the complainant and witnesses before transferring under Section 212, the transferee Magistrate need not re-examine them.

Sub-section (2): Additional Protection for Public Servants

For complaints against public servants, the Magistrate shall not take cognizance unless:

(a) The public servant is given an opportunity to explain or assert their version of events.

(b) A report is received from their superior officer detailing the facts and circumstances.

This is a reinforcement of protection available to public servants under various service and criminal law provisions (akin to the concept of “sanction for prosecution” under previous CrPC Sections 197 or 200 Proviso).

Key Improvements and Principles in Section 223

Comparison with Earlier Law (Section 200 CrPC, 1973)

Section 223 brings procedural clarity, balance, and fairness to the complaint mechanism:

• Strengthens the rights of the accused at the pre-trial stage.
• Protects public servants from frivolous litigation while allowing judicial scrutiny.
• Ensures non-repetition and judicial efficiency in examination processes.