Examination of complainant
Section 223(1) provides that Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any.
The substance of such examination shall be reduced to writing and shall be signed by the complainant, witnesses and the Magistrate. The examination of complainant is mandatory and it is not a mere formality. Dismissal of complaint without such examination is illegal.
First Proviso to Section 23(1) provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
There is a new introduction in this provision. First Proviso to Section 223(1) of BNSS, 2023 provides that no cognizance shall be taken on complaints unless an opportunity of hearing has been given to accused. There was no such right available to accused in CrPC.
In Shankar Finance and Investment v. State of Andhra Pradesh, (2008) 8 SCC 536 Supreme Court held that the object of examination of complainant under Section 223(1) of BNSS is to satisfy the existence of prima facie case against the person accused of the offence and to ensure that such person is not harassed by false and vexatious complaints
Exceptions: Second Proviso to Section 223(1) provides by way of exception that under following circumstances, on written complaint, Magistrate need not examine the complaninant and the witnesses:
(i) Where a Public Servant acting or purporting to act in the discharge of his official duty or a court has made the complaint; or
(ii) Where the Magistrate makes over the case of inquiry of trial to another Magistrate under Section 212.
If the Magistrate makes over the case to another Magistrate after examining the complaint and the witnesses, the later Magistrate need not re-examine them.
In Mohd.Yusuf v. Smt. Afaq Jahan, AIR 2006 SC 705, Supreme Court held that no particular format of complaint is required under the Code [Now BNSS]. A petition addressed to the Magistrate containing an allegation that an offence has been committed can be suitably dealt as a complaint.
Cognizance of complaint against public servant [Section 223(2)]
Section 223(2) provides that 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.
There is a new introduction in this provision. There was no corresponding provision in CrPC. This provision provides protection to public servants against false or frivolous cases.
Procedure by Magistrate not competent to take cognizance of the case [Section 224]
Section 224 provides that if complaint is made to Magistrate, not competent to take cognizance of the case, he shall:
i. Return it for presentation to proper court with an endorsement to that effect (in case of written complaint)
ii. Direct the complainant to the proper court (if complaint is not in writing).
Postponement of issue of process
Section 225 provides that a Magistrate who has taken cognizance of an offence or to whom a case has been made over under Section 212, may postpone the issue of process to the accused and for the purpose of deciding whether or not, there is sufficient ground for proceeding, he may:
i. Either inquire into the case himself or,
ii. Direct an investigation to be made by a police officer or by any other person (such person shall have for that investigation all the powers of an officer-in-charge of a police station, except the power of arrest without warrant.
If the accused is residing beyond the jurisdiction of the court then it is mandatory for the Magistrate to postpone the issue of process and proceed under Section 225.
Circumstances when direction of investigation shall not be made
Direction of investigation shall not be made under the following circumstances:-
i. Where the offence is triable exclusively by the Court of Session; or
ii. Unless the complaint and the witness present (if any) have been examined on oath under Section 223(where the complaint has not been made by a court).
If the complaint is made by the court and the Magistrate is of opinion that an investigation under Section 225 is required then there is no need to examine the court under Section 223. However, if the complaint is made by public servant or any other person and the Magistrate is of the opinion that an investigation under Section 225 is required to be made then in that case the examination of that public servant or any other person becomes mandatory under Section 223. As we have seen in Section 223 that when a complaint is filed by a public servant in discharge of his official duties then the examination under section 223 is optional, however that provision is regulated by proviso to section 225 and if the Magistrate needs to direct investigation then before the direction for investigation is made examination under Section 223 becomes mandatory.
Where the offence is triable exclusively by the Court of Session, the Magistrate shall call upon the complainant to produce all his witnesses and examine the witnesses on oath.
Object
In Manhari Bhai v. Shailesh Bhai, (2012) 10 SCC 517 the Supreme Court held that Section 202 of the Code [now Section 225 of BNSS] has following two objects:
1. It enable the Magistrate to scrutinize the allegations in the complaint with a view to prevent harassment to the accused.
2. It helps the Magistrate to find out whether there is some material to support the allegations in the complaint.
Supreme Court in Abhijit Pawar v. Hemlata Madhukar Nimbalkar, (2017) 3 SCC 528 observed that the requirement of conducting inquiry or directing an investingation under Section 202 [now section 225 of BNSS] before issuing process is not an empty formality. No specific mode or manner of inquiry is provided in Section 202 [now Section 225 of BNSS]. In inquiry envisaged under Section 202 [now 225 of BNSS] witnesses are examined, whereas under Section 200 [now Section 223 of BNSS] examination of complainant only is necessary with the option of examining the witnesses, if any. In simple words, proceedings under Section 202 of the code [Now Section 225 of BNS] enables the Magistrate to form an opinion whether process should be issued or not.
Scope of inquiry under Section 225
In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others, AIR 1976 SC 1947 Supreme Court held that the scope of inquiry under Section 202 [now Section 225 of BNSS] is extremely limited. It is limited only to the ascertainment of truth or falsehood of the allegations made in the complaint. In proceedings under Section 202 [now Section 225 of BNSS] the accused has no locus standi and is not entitled to be heard.
Furthermore, Supreme Court in Ramdev Food Products Private Limited v. State of Gujarat, AIR 2015 SC 1742 held that in course of investigation directed under Section 202 [now Section 225 of BNSS] the police cannot exercise the power of arrest.
Supreme Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai patel, (2017) 4 SCC177 held that direction of investigation under Section 202 of the Code [now Section 225 of BNSS] is in the nature of inquiry to derive satisfaction as to whether the proceedings initiated ought to be furthered or not. Such direction is not in the nature of further investigation as contemplated under Section 173(8) [now Section 193(9) of BNSS].
Case exclusively triable by Court of Session
Proviso to Section 225 provides that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. This proviso is intended to enable the accused to have an overall picture of the case against him and to afford him full and fair opportunity to defend himself.
In Rosy and Another v. State of Kerala & others, AIR 2000 SC 637 Supreme Court held that where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, the direction of investigation by the police officer is not permissible and he is required to hold inquiry by himself. During that inquiry he may decide to examine the witnesses on oath. The reason obviously is that in a private complaint, which is required to be committed to the Sessions Court for trial, it would safeguard the interest of the accused and he would not be taken by surprise at the time of trial and it would reveal the version of the witnesses whose list is required to be filed by complaint under Section 204(2) [now Section 227(2) of BNSS] before issuance of the process. The irregularity or non-compliance thereof would not vitiate the further proceedings in all cases. A person complanining of such irregularity should raise objection at the earliest stage and he should point out how prejudice is caused or is likely to be caused by not following the proviso. If he fails to raise such objection at the earliest stage, he is precluded from raising such objection later.
Dismissal of complaint
Section 226 provides that after considering the statement of the complainant and of the witnesses and the result of inquiry or investigation under Section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint after briefly recording the reasons for so doing.
Sufficient grounds means satisfaction that a prima facie case is made out against the accused and not sufficient ground for conviction.[Nirmanjit Singh v. State of West Bengal, AIR 1972 SC 2639]. Order passed under Section 226 could be challenged in revision.
In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another, AIR 2005 SC 3512, Supreme Court held that Section 302 [now Section 226 of BNSS] uses the words 'after considering' and 'the Magistrate is of the opinion that there is no sufficient ground for proceeding'. These words suggest that the Magistrate has to apply his mind to a complaint at the initial stage itself and see whether a case is made out against the accused.
Second complaint
The order of dismissal of complaint is neither an order of acquittal nor an orer of discharge, therefore, principle incorporated under Section 337 is not applicable. In Poonam Chand Jain v. Fazru, (2010) 2 SCC 631 the Supreme Court held that only in exceptional circumstances the second complaint can be entertained. These circumstances may be:-
1. Previous order of dismissal was passed on incomplete record;
2. Previous order was result of misunderstanding of the nature of complaint or was manifestly absurd or unjust;
3. Where the new facts are adduced in second complaint which could not, with reasonable diligence, have been brought on record in the previous proceedings.
Amendment of complaint
There is no enabling provision in BNSS which permits the amendment of complaint. However, in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609 Supreme Court held that if the amendment sought to be made relates to a simple infirmity which iis curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, then notwithstanding the fact that there is no enabling provision in the Code [now BNSS] for entertaining such amendment, the court may permit such an amendment to be made.
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