Unlocking the legal threshold

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, introduced as part of India’s reform of its criminal laws, establishes a comprehensive framework governing criminal proceedings. One of its critical components is the process of initiating legal proceedings against an individual or entity accused of an offence.

The conditions requisite for initiation of proceedings serve as safeguards to ensure due process and prevent the misuse of the judicial system. Understanding these conditions is essential for legal practitioners and individuals alike, as they govern the manner in which cognisance of offences is taken, the authority of magistrates and courts, and the procedural formalities that must be observed before prosecution can commence. This article explores the key provisions and prerequisites under the BNSS, focusing on how they structure the initiation of criminal proceedings in a fair and efficient manner.

Who can take cognisance of an offence under BNSS?

Any Magistrate of the first class, and any Magistrate of the second class who has been specially empowered, can take cognisance of any offence. This can happen:

• Upon receiving a complaint of facts that constitute the offence, including a complaint filed by a person authorised under any special law.
• Upon a police report (submitted in any mode, including electronic mode) of such facts.
• Upon information received from any person other than a police officer, or upon the Magistrate’s own knowledge that an offence has been committed.

Can a Magistrate of the second class be empowered to take cognisance of offences?

Yes, the Chief Judicial Magistrate may empower any Magistrate of the second class to take cognisance of offences that are within the Magistrate’s competence to inquire into or try.

What happens if an accused objects to a Magistrate taking cognizance under specific circumstances?

When a Magistrate takes cognizance of an offence based on information from someone other than a police officer or based on the Magistrate’s own knowledge, the accused must be informed, before any evidence is taken, that they have the right to request the case be inquired into or tried by another Magistrate. If the accused objects, the case shall be transferred to another Magistrate specified by the Chief Judicial Magistrate.

Can a Chief Judicial Magistrate make over a case to another Magistrate?

Yes, a Chief Judicial Magistrate, after taking cognisance of an offence, can make over the case for inquiry or trial to any competent Magistrate subordinate to him. Additionally, any Magistrate of the first class empowered by the Chief Judicial Magistrate may also transfer the case to another competent Magistrate as specified by the Chief Judicial Magistrate.

Can a Court of Session take cognisance of an offence as a court of original jurisdiction?

No, a Court of Session cannot take cognisance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate.

What role does an Additional Sessions Judge play in the trial of cases?

An Additional Sessions Judge shall try cases that are made over to him for trial by the Sessions Judge of the division or as directed by the High Court.

Can a court take cognisance of offences against the lawful authority of public servants or offences related to public justice?

No court shall take cognisance of such offences unless a complaint in writing is made by the public servant concerned or some other authorised public servant. This includes offences punishable under certain sections of the Bharatiya Nyaya Sanhita, abetment, attempts, and criminal conspiracy related to these offences.

Can a complaint made by a public servant be withdrawn?

Yes, the authority to whom the public servant is subordinate or who has authorised the public servant to make the complaint may order the withdrawal of the complaint, and upon receipt of the order by the court, no further proceedings shall take place, provided that the trial in the court of first instance has not been concluded.

Can a witness file a complaint for offences related to intimidation or threats?

Yes, a witness or any other person can file a complaint concerning an offence under the Bharatiya Nyaya Sanhita.

What is required for the prosecution of offences against the State or criminal conspiracy?

A court cannot take cognizance of offences against the State or criminal conspiracy to commit such offences without the prior sanction of the Central Government, State Government, or District Magistrate, depending on the type of offence.

What is the procedure for prosecuting judges and public servants for offences committed in the discharge of their official duties?

No court shall take cognizance of offences committed by judges or public servants while acting in the discharge of their official duties without the previous sanction of the Central or State Government. A decision regarding sanction must be made within 120 days, and if not, the sanction shall be deemed to have been granted.

Are there any special provisions for prosecuting members of the armed forces for offences committed in the discharge of their duties?

Yes, no court shall take cognisance of an offence committed by a member of the armed forces while acting in the discharge of official duties without the prior sanction of the Central Government. This provision can also be extended to members of forces charged with public order by State Governments under certain conditions.

Can a court take cognisance of offences related to marriage without a complaint?

No, a court shall not take cognisance of offences related to marriage unless a complaint is made by the person aggrieved by the offence. In certain cases, such as when the aggrieved person is a child, of unsound mind, or unable to file a complaint, another person may be allowed to file on their behalf with the court’s permission.

How is the prosecution of defamation offences handled?

A court shall not take cognisance of a defamation offence unless a complaint is made by the person aggrieved by the offence. If the defamation relates to high-level public figures such as the President, Vice-President, or Governors, the complaint can be made by the Public Prosecutor with the sanction of the appropriate government. Additionally, the complaint must be filed within six months of the alleged offence.

Can a court take cognisance of offences between spouses related to certain sections of the Bharatiya Nyaya Sanhita?

No, a court cannot take cognisance of an offence under the Bharatiya Nyaya Sanhita related to persons in a marital relationship unless there is prima facie satisfaction of the facts, based on a complaint made by the wife against the husband.

Can a Magistrate who receives a case on transfer take cognisance of the case even if the transfer of the case to their file is not in accordance with the law?

Yes, a Magistrate who receives a case on transfer and takes cognisance does not become incompetent to do so merely because the transfer of the case to their file is not in accordance with the law. This was held in Anil Saran v. State of Bihar, (1995) 6 SCC 142.

Can cognisance be taken of the offenders in criminal law?

Taking cognisance refers to taking cognisance of the offence and not the offenders. This was clarified in Raghubans Dubey v. State of Bihar, 1967 SCC OnLine SC 3, and also in State of W.B. v. Manmal Bhutoria, (1977) 3 SCC 440.

Can a Magistrate take action against persons not mentioned in the complaint?

Yes, the Magistrate takes cognisance of the case as a whole and can take action against persons not mentioned in the complaint. This was established in State v. Ramu, (1974) 2 Karn LJ 71.

Can a Magistrate issue process against other accused after process has already been issued against some on one date?

Yes, even after process has been issued against some accused on one date, the Magistrate can still issue process against another person, provided there is material on record, even if their name is not included in the charge sheet. This was held in Nahar Singh v. State of U.P., (2022) 5 SCC 295 and State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539.

Can a criminal trial continue against a dead person?

No, a criminal court cannot continue proceedings against a dead person or find them guilty. This was held in U. Subhadramma v. State of A.P., (2016) 7 SCC 797.

Are offences like cheating and forgery committed by public servants considered to be committed while discharging official duties?

No, offences such as cheating, forgery, and others are not considered to have been committed by a public servant while discharging official duties. This was held in Bholu Ram v. State of Punjab, (2008) 9 SCC 140.

Therefore, the conditions requisite for the initiation of proceedings under the BNSS reflect a robust framework designed to uphold the principles of justice, transparency, and accountability. By mandating specific requirements for taking cognisance of offences—such as the need for complaints by aggrieved parties, prior sanction from the government in sensitive cases, and judicial discretion in transferring cases—the BNSS ensures that criminal proceedings are not only lawful but also considerate of the rights of the accused and the victims. These provisions strike a balance between empowering courts to administer justice and safeguarding individuals from arbitrary prosecutions, marking a significant step in India’s criminal justice reforms.

 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.