Section 223 BNSS: Examination of complainant (Formerly Section 200 CrPC)

Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023: Examination of complainant

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Complaint Sec 2(1)(d) Inquiry Sec 2(1)(g)

Legal Commentary & Landmark Judgments: Section 223

Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the examination of complainants in private criminal complaints and introduces a mandatory prior opportunity of hearing for the accused.

Core Legal Standard: Section 223 of the BNSS regulates private criminal complaints, mandating that the Magistrate must examine the complainant and witnesses upon oath before issuing process to the accused.
Sub-Section (1) Provision: Under sub-section (1), a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, and the substance of such examination shall be reduced to writing and signed by the complainant and witnesses.
Procedural Mechanism: The first proviso to Section 223 introduces a groundbreaking procedural safeguard in Indian criminal law: no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

This statutory framework establishes clear operational guidelines, balancing legal compliance with procedural safeguards.

Key Landmark Precedents:

Chandra Deo Singh v. Prokash Chandra Bose (AIR 1963 SC 1430): The Supreme Court historically held that at the pre-cognizance stage the Magistrate only tests prima facie truth; the new BNSS Section 223 proviso statutorily expands accused protections by granting a pre-cognizance right of hearing.
National Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488: Emphasized that Magistrates must exercise utmost caution before issuing criminal process in commercial and contractual disputes disguised as criminal complaints.

Legal Commentary:

Section 223 represents one of the most consequential procedural protections introduced by the BNSS. Under the old CrPC, an accused had no right to participate until process was issued. Under Section 223, the accused is entitled to advance notice and an opportunity to be heard before the Magistrate takes cognizance, effectively eliminating extortionate private complaints at the threshold.