Section 223 BNSS: Examination of Complainant and Hearing of Accused
Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the procedure when a Magistrate takes cognizance of an offence on a complaint. It requires examination on oath of the complainant and witnesses present, subject to specified exceptions, and also contains safeguards concerning hearing of the accused and complaints against public servants for acts connected with official functions or duties.
Text of Section 223 BNSS
223. (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.
Meaning and Scope of Section 223
Section 223 applies to complaint cases before a Magistrate. Its principal purpose is to regulate the initial judicial scrutiny of a complaint before the Magistrate proceeds further. The provision requires the Magistrate to examine the complainant and any witnesses who are present, record the substance of that examination in writing, and obtain the required signatures.
The section also contains procedural safeguards that operate at the cognizance stage, including an opportunity of hearing to the accused and special requirements where a complaint is made against a public servant for an act alleged to have occurred in the course of official functions or duties.
Examination of Complainant and Witnesses
| Step | Requirement Under Section 223(1) |
|---|---|
| Jurisdiction | The Magistrate must have jurisdiction and be taking cognizance of an offence on complaint. |
| Examination | The complainant and witnesses present, if any, are examined upon oath. |
| Recording | The substance of the examination must be reduced to writing. |
| Signatures | The written substance must be signed by the complainant, the witnesses and the Magistrate. |
Opportunity of Hearing to the Accused Before Cognizance
The first proviso to Section 223(1) states that the Magistrate shall not take cognizance of an offence without giving the accused an opportunity of being heard. This is an express procedural requirement contained in the BNSS text and should be considered at the complaint-cognizance stage.
The hearing contemplated by the proviso is connected with the Magistrate's decision whether cognizance should be taken on the complaint. It is distinct from the later stages of inquiry, issue of process, trial and final adjudication.
When Examination of the Complainant May Be Dispensed With
Where the complaint is made in writing, the Magistrate need not examine the complainant and witnesses in two situations expressly stated in Section 223(1).
- If the complaint is made by a public servant acting or purporting to act in the discharge of official duties, or by a Court.
- If the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212 BNSS.
Where the first Magistrate has already examined the complainant and witnesses before making over the case under Section 212, the Magistrate receiving the case need not examine them again.
Reference to Section 212 BNSS
Section 223 refers to Section 212 BNSS in relation to making over a case to another Magistrate for inquiry or trial. The cross-reference explains why a fresh examination may not be required when the complaint proceedings are transferred in the manner contemplated by the Sanhita.
Complaints Against Public Servants Under Section 223(2)
Section 223(2) imposes additional conditions before cognizance can be taken on a complaint against a public servant for an offence alleged to have been committed in the course of discharge of official functions or duties.
| Safeguard | Requirement |
|---|---|
| Opportunity to public servant | The public servant must be given an opportunity to make assertions regarding the situation that led to the alleged incident. |
| Superior officer report | A report containing the facts and circumstances of the incident must be received from the officer superior to that public servant. |
Key Legal Points
- Section 223 governs examination of the complainant in complaint cases before a Magistrate.
- The complainant and witnesses present are ordinarily examined upon oath.
- The substance of their examination is reduced to writing and signed by them and by the Magistrate.
- The section expressly requires an opportunity of hearing to the accused before cognizance is taken.
- Written complaints by a Court or qualifying public servant may fall within the statutory exception to personal examination.
- Where a case is made over under Section 212, the statutory exceptions concerning re-examination apply.
- A complaint against a public servant concerning official functions or duties attracts the additional safeguards in Section 223(2).
Related BNSS Provisions
Section 223 forms part of the complaint-case procedure and should be read with the immediately following provisions. Section 224 deals with the procedure where a Magistrate is not competent to take cognizance, Section 225 permits postponement of issue of process and inquiry or investigation in appropriate cases, Section 226 concerns dismissal of a complaint where there is no sufficient ground for proceeding, and Section 227 governs issue of process where sufficient ground exists.
Commencement of the BNSS
The Bharatiya Nagarik Suraksha Sanhita, 2023 is Act No. 46 of 2023. The Central Government appointed July 1, 2024 as the date on which its provisions came into force, except the notified First Schedule entry relating to Section 106(2) of the Bharatiya Nyaya Sanhita, 2023.
Official Legal Sources
For authoritative statutory text and commencement information, refer to the official Government sources below.