From Complaint to Courtroom

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant shift in the criminal procedural laws in India, aiming to streamline and strengthen the legal process to ensure swifter and more effective justice. Among its pivotal provisions are those governing complaints to magistrates and the commencement of proceedings in criminal cases.

This framework clarifies the responsibilities of magistrates, specifies the conditions under which they may take cognizance of complaints, and defines the roles of public servants and police in relation to such complaints. Through these refined guidelines, the BNSS emphasises transparency, accountability, and the protection of both complainants and accused individuals, ensuring that every complaint is addressed with due diligence and that the accused’s rights are preserved throughout the process.

What is the procedure a Magistrate follows when taking cognisance of an offence on a complaint?

The Magistrate must examine the complainant and any witnesses present on oath, then reduce the substance of this examination to writing, which shall be signed by the complainant, witnesses, and the Magistrate.

Is the accused given an opportunity to be heard before the Magistrate takes cognisance of an offence?

Yes, no cognisance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

When is it not necessary for a Magistrate to examine the complainant and witnesses on a written complaint?

Examination is not required when:

• The complaint is made by a public servant acting in the discharge of official duties or by a Court.
• The Magistrate refers the case to another Magistrate for inquiry or trial.

If a Magistrate transfers a case to another Magistrate after examining the complainant and witnesses, must they be re-examined?

No, the second Magistrate need not re-examine them.

Under what conditions can a Magistrate take cognisance of a complaint against a public servant for actions taken in their official capacity?

The Magistrate must:

• Provide the public servant an opportunity to present their account of the situation.
• Receive a report from a superior officer detailing the incident’s facts and circumstances.

What should a Magistrate do if a complaint is made to them but they are not competent to take cognisance of the case?

The Magistrate should:

• Return the complaint with an endorsement for presentation to the proper Court if it is in writing.
• Direct the complainant to the proper Court if the complaint is not in writing.

When can a Magistrate postpone the issue of process on receiving a complaint of an offence?

The Magistrate may postpone the issue of process if:

• They wish to inquire into the case or direct an investigation to determine if there is sufficient ground for proceeding.
• The accused resides outside the Magistrate’s jurisdiction area.

Under what circumstances is a Magistrate prohibited from directing an investigation on a complaint?

The Magistrate cannot direct an investigation if:

• The offence is triable exclusively by the Court of Session.
• The complaint is not made by a Court, unless the complainant and witnesses have been examined on oath.

During an inquiry, may the Magistrate take evidence of witnesses on oath?

Yes, the Magistrate may take evidence of witnesses on oath if they deem it appropriate.

What powers does a person conducting an investigation under the Magistrate’s direction (but not a police officer) have?

Such a person has all powers conferred on an officer in charge of a police station except the power to arrest without a warrant.

Can a police officer arrest a person without a warrant during an investigation?

No, the police officer cannot arrest without a warrant in the course of an investigation, as clarified in the case of Sankalchand Valjibhai Patel v. J.P. Chavda.

What happens if a Magistrate finds no sufficient ground for proceeding after examining the complainant and witnesses?

The Magistrate shall dismiss the complaint, recording brief reasons for doing so.

What actions should a Magistrate take if they find sufficient grounds for proceeding after taking cognisance of an offence?

If the case appears to be:

• A summons-case, they should issue a summons for the accused’s attendance.
• A warrant-case, they may issue a warrant or a summons, depending on what they find suitable.

Are summons or warrants allowed to be issued electronically?

Yes, summons or warrants may also be issued through electronic means.

Can the Magistrate issue a summons or warrant without a list of prosecution witnesses filed?

No, a list of prosecution witnesses must be filed before issuing a summons or warrant.

May a Magistrate dispense with the personal attendance of an accused?

Yes, the Magistrate may permit the accused to appear through an advocate if justified.

What procedure is followed in cases of petty offences for which summary disposal may be suitable?

The Magistrate shall issue a special summons allowing the accused to plead guilty without appearing in person, provided the fine does not exceed 5000 rupees.

What documents must the Magistrate supply to the accused in cases instituted on a police report?

The Magistrate shall furnish:

• The police report,
• The FIR,
• Statements recorded,
• Any confessions/statements recorded,
• Any other document forwarded with the police report.

When should these documents be furnished to the accused?

The Magistrate must furnish these documents without delay and no later than fourteen days after the accused appears or is produced.

What documents should the Magistrate provide in cases triable exclusively by the Court of Session?

The Magistrate should provide:

• Statements recorded,
• Statements or confessions recorded,
• Any documents relied upon by the prosecution.

How should a Magistrate handle cases that are triable exclusively by the Court of Session?

The Magistrate shall:

• Commit the case to the Court of Session after meeting the requirements of BNSS,
• Remand the accused to custody as per the provisions,
• Send the record of the case to the Court of Session and notify the Public Prosecutor.

Can a Magistrate discharge the accused in cases exclusively triable by the Court of Session?

No, the committing Magistrate does not have the power to discharge the accused in such cases.

What steps must a Magistrate take if a complaint case and a police investigation pertain to the same offence?

The Magistrate shall:

• Stay the proceedings and request a report from the police officer conducting the investigation.
• Upon receiving the report, inquire or try both cases together if the police report includes the accused from the complaint case.
• Resume the complaint inquiry or trial if the police report does not implicate the accused from the complaint case.

Therefore, the BNSS, introduces robust mechanisms for handling complaints before magistrates, enhancing the efficiency of India’s criminal justice system. By codifying the procedures for taking cognizance, conducting preliminary inquiries, and issuing summons and warrants, the BNSS strengthens judicial oversight and balances the rights of all parties involved.

This procedural clarity not only aids magistrates in executing their duties effectively but also builds trust in the legal process by guaranteeing that complaints are handled lawfully and promptly. As India progresses in its quest for a more responsive legal system, these provisions serve as a cornerstone for ensuring justice in cases brought before the magistracy.

 Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.