Private Criminal Complaint Under BNSS: Cognizance, Complainant Evidence and Summoning

A criminal case does not always begin with a police charge sheet. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) permits a Magistrate to take cognizance of an offence upon a complaint of facts constituting the offence. The current complaint-case framework is principally found in Sections 210 and 223 to 233 BNSS.

For current proceedings, the complaint should not be drafted merely by copying the former Section 200 CrPC terminology. The BNSS reorganises the cognizance and complaint procedure and also contains an important proviso in Section 223 concerning an opportunity of hearing to the accused before cognizance on a complaint.

This guide explains when to use a private complaint, Section 210 cognizance, examination under Section 223, pre-process inquiry under Section 225, dismissal under Section 226, issue of process under Section 227, documents/evidence and the difference between a complaint case and a Section 175(3) request for police investigation.

What Is a Complaint Case Under the BNSS?

A complaint case is a proceeding initiated before the competent Magistrate on a complaint alleging facts that constitute an offence, rather than on a police report.

Under Section 210(1)(a) BNSS, a Magistrate of the first class, and an appropriately empowered Magistrate of the second class, may take cognizance upon receiving a complaint of facts constituting an offence. The provision also recognises complaints filed by persons authorised under special laws.

The official provision is available on India Code — Section 210 BNSS.

Private Complaint vs Section 175(3) BNSS Investigation Application

The two routes serve different procedural objectives.

Private complaint: asks the Magistrate to take cognizance and proceed through the complaint-case process based on complainant evidence and the statutory inquiry/process stages.
Section 175(3) BNSS: asks the Magistrate to direct police investigation after the statutory police-escalation route under Section 173(4).

If essential evidence is already available with the complainant and can be proved through witnesses/documents, the complaint route may be suitable. If evidence requires police powers such as tracing, search, seizure, recovery, technical records or identification of unknown accused persons, a request for investigation may be more appropriate.

See our separate guide on Section 175(3) BNSS when police refuse to act.

What Should a Criminal Complaint Contain?

A complaint should be fact-specific and offence-specific. A strong structure normally includes:

particulars of the complainant and accused;
jurisdictional facts;
date-wise factual chronology;
specific role of each accused;
the legal ingredients of the alleged offence;
documents and electronic evidence relied upon;
witnesses who can prove the allegations;
prior police approach or legal notice where relevant;
limitation/sanction/special-law requirements, if any;
a prayer that matches the Magistrate’s statutory powers.

Do not substitute adjectives such as “fraudulent,” “illegal” or “criminal” for actual facts satisfying the statutory ingredients.

Section 223 BNSS: Examination of Complainant

Section 223(1) provides that a Magistrate having jurisdiction, while taking cognizance on a complaint, shall examine the complainant and witnesses present, if any, upon oath. The substance of the examination is reduced to writing and signed by the complainant, witnesses and Magistrate.

The provision includes statutory exceptions where the complaint is made in writing by a public servant acting or purporting to act in discharge of official duties or by a court, and in specified situations where the matter is transferred under Section 212.

The New Accused-Hearing Proviso in Section 223

Section 223 contains a significant proviso stating that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

Because this is a departure from the older complaint-stage structure familiar under the CrPC, practitioners should examine current binding judicial interpretation and local court practice when preparing or responding to a complaint. The safest drafting approach is to accurately plead the complaint and preserve all supporting material rather than assume the procedural sequence from the former Code remains unchanged.

The official statutory text can be checked at India Code — Section 223 BNSS.

Complaints Against Public Servants: Additional Section 223 Requirements

Section 223(2) contains a specific safeguard where a complaint alleges an offence by a public servant in the course of discharge of official functions or duties. The Magistrate cannot take cognizance on such complaint unless the statutory conditions are satisfied, including an opportunity to the public servant to make assertions regarding the situation and receipt of a report from the superior officer containing the facts and circumstances.

This provision should be read with any separate sanction or prosecution restrictions applicable under the BNSS or special law.

Section 225 BNSS: Postponement of Issue of Process

After receiving a complaint, the Magistrate may postpone issue of process and either inquire into the case personally or direct investigation by a police officer or another person for the limited purpose of deciding whether there is sufficient ground for proceeding.

Where the accused resides beyond the Magistrate’s territorial jurisdiction, Section 225 makes postponement of process mandatory.

This inquiry is not the same as a full trial. Its purpose is to test whether sufficient ground exists to proceed against the proposed accused.

When Can the Magistrate Direct Investigation Under Section 225?

Section 225 permits a limited investigation for deciding whether sufficient ground exists, but the statute places restrictions. The Magistrate cannot make such a direction:

where the offence appears to be exclusively triable by the Court of Session; or
where the complaint was not made by a court, unless the complainant and witnesses present have been examined on oath under Section 223.

If the investigation is entrusted to a person who is not a police officer, that person has the investigative powers specified by the section but not the power to arrest without warrant.

Sessions-Triable Offences and Complainant Witnesses

Where it appears that the offence complained of is triable exclusively by the Court of Session, Section 225 requires the Magistrate to call upon the complainant to produce all witnesses and examine them on oath.

This makes early witness planning particularly important in serious complaint cases.

Section 226 BNSS: Dismissal of Complaint

If, after considering the statements on oath and the result of the inquiry/investigation under Section 225, the Magistrate concludes that there is no sufficient ground for proceeding, Section 226 requires dismissal of the complaint.

The Magistrate must briefly record reasons for dismissal.

A complainant considering a challenge should therefore analyse the actual reasons recorded rather than merely asserting that the court “did not believe” the complaint.

Section 227 BNSS: Issue of Process

If the Magistrate taking cognizance is satisfied that sufficient ground exists to proceed:

in a summons case, summons is issued for attendance of the accused;
in a warrant case, the Magistrate may issue a warrant or, if considered appropriate, a summons.

Section 227 expressly permits summons or warrants to be issued through electronic means.

The statute also requires a list of prosecution witnesses before process is issued and, for a proceeding instituted on a written complaint, the process must be accompanied by a copy of the complaint.

What Is “Sufficient Ground for Proceeding”?

At the pre-summoning stage the court is not conducting the final trial, but the complaint must still disclose a legally sustainable case supported by material sufficient to justify calling the accused before the court.

Relevant questions include:

Do the pleaded facts satisfy the ingredients of an offence?
Is there a legally relevant role attributed to each accused?
Are basic allegations supported by documents/witnesses?
Is the dispute purely civil or contractual?
Is there a statutory bar, sanction requirement or limitation issue?
Does the court have territorial and subject-matter jurisdiction?
Is the complaint internally consistent?

Electronic Evidence in a Private Complaint

Where the complaint relies on WhatsApp, email, recordings, CCTV, transaction records or other digital material, the evidentiary framework under the Bharatiya Sakshya Adhiniyam, 2023 should be considered from the beginning.

Do not rely only on cropped screenshots. Preserve the underlying digital record, metadata/source information and the material required to prove admissibility and authenticity.

See our Bharatiya Sakshya Adhiniyam evidence guide.

Cheating Complaint Under Section 318 BNS

A private complaint is sometimes used in commercial disputes where cheating is alleged. The complaint must still plead deception and the legally required dishonest/fraudulent inducement. Mere non-payment or breach of contract is not automatically a criminal offence.

For current cheating law, see the Section 318 BNS cheating guide.

Complaint Case and Parallel Police Investigation

Section 233 BNSS addresses the situation where a complaint case is pending and it appears during inquiry/trial that police investigation is also in progress regarding the same offence.

This avoids two uncoordinated proceedings continuing without the Magistrate considering the police investigation. Where parallel proceedings exist, disclose them accurately to the court.

Documents Commonly Filed With a Private Criminal Complaint

complaint with verification/affidavit where required by law or practice;
list of witnesses;
supporting documents and annexures;
electronic evidence and proof framework;
identity/address documents where procedurally required;
postal notices and delivery proof;
police complaints and responses where relevant;
medical or expert documents;
transaction/bank records;
jurisdiction-supporting records;
authorisation/resolution where complainant is an entity.

Common Mistakes in Private Complaints

Using old CrPC section numbers without checking BNSS.
Failing to specify the role of each accused.
Turning a civil recovery dispute into a criminal complaint without ingredients.
Ignoring territorial jurisdiction.
Failing to preserve originals/electronic source evidence.
Not filing a prosecution witness list before process.
Assuming summoning is automatic once a complaint is filed.
Not addressing sanction or special-law cognizance restrictions.
Concealing parallel FIR/investigation proceedings.
Seeking a warrant when a summons/process route is legally appropriate.

Frequently Asked Questions

What is the new Section 200 CrPC provision under BNSS?

The current complaint-stage framework is not a simple one-number substitution. Magistrate cognizance is under Section 210 BNSS, examination of the complainant is under Section 223, pre-process inquiry is under Section 225, dismissal under Section 226 and issue of process under Section 227.

Can a Magistrate take cognizance on a private complaint?

Yes. Section 210(1)(a) permits cognizance upon receiving a complaint of facts constituting an offence, subject to the other provisions of the chapter.

Is the complainant examined on oath?

Section 223 provides for examination of the complainant and witnesses present upon oath, subject to the statutory exceptions.

Does the accused have a hearing before cognizance under BNSS?

Section 223 contains a proviso stating that no cognizance shall be taken on a complaint without giving the accused an opportunity of being heard. Current binding judicial interpretation and local procedural practice should be checked in an actual case.

What happens if the accused lives outside the Magistrate’s jurisdiction?

Section 225 requires postponement of issue of process where the accused resides outside the Magistrate’s territorial jurisdiction, followed by the statutory inquiry/investigation mechanism for deciding whether sufficient ground exists.

Can the Magistrate dismiss the complaint before summoning the accused?

Yes. Under Section 226, if there is no sufficient ground for proceeding after considering the relevant material, the Magistrate dismisses the complaint and briefly records reasons.

When are summons or warrants issued?

Section 227 governs issue of process once the Magistrate concludes that sufficient ground for proceeding exists. The form of process depends, among other things, on whether the matter is a summons case or warrant case.

Primary Legal Source

Bharatiya Nagarik Suraksha Sanhita, 2023 — India Code

Disclaimer

This article is for legal education and general information only. It is not solicitation or case-specific legal advice. Complaint procedure can vary based on the offence, special statute, sanction requirements, territorial jurisdiction and binding court interpretation of the BNSS provisions.

Fastrack Legal Solutions