Section 223 BNSS: Complaint Hearing and Cognizance

The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 1 July 2024. Section 223 deals with examination of a complainant and includes an opportunity for the proposed accused to be heard before the Magistrate takes cognizance. It should not be described as a universal fourteen-day preliminary-inquiry provision.

For decades, private criminal complaints have been a double-edged sword. While they offer a vital avenue for citizens to seek justice when the police do not register an FIR (see our guide to filing an FIR in India), they have also been notoriously exploited as tools for harassment, intimidation, and settling personal or business scores. The ease with which a person could be summoned to a court, often in a distant city, based on a baseless complaint, has been a significant procedural loophole.

Section 223 BNSS requires the Magistrate to examine the complainant and witnesses present, subject to stated exceptions. Its first proviso says that cognizance shall not be taken without giving the accused an opportunity of being heard. This guide separates that rule from the inquiry contemplated by Section 225. For general procedure, see the criminal law beginner’s guide.

Section 223 BNSS and the neighbouring complaint provisions

Section 223 BNSS broadly corresponds to examination of the complainant under Section 200 CrPC. The separate inquiry or investigation before issue of process is addressed by Section 225 BNSS, broadly corresponding to Section 202 CrPC.

Section 225 BNSS allows the Magistrate to postpone issue of process and inquire into the case or direct an investigation to decide whether sufficient ground exists. It becomes mandatory to postpone process where the accused resides outside the Magistrate’s jurisdiction. That is distinct from the hearing opportunity in Section 223.

The statutory sequence must be read as a whole: examination under Section 223, return of a complaint to the proper court under Section 224, postponement and inquiry under Section 225, and dismissal under Section 226 where there is no sufficient ground for proceeding.

This discretion often led to several problems:

• Harassment of the Innocent: Individuals could be dragged into criminal proceedings based on a prima facie complaint that lacked real substance, forcing them to hire lawyers, apply for bail, and attend court hearings, causing immense mental and financial distress.
• Settling Civil Disputes: Business or property disputes were frequently given a criminal color to pressure the other party into a settlement.
• Jurisdictional Harassment: Complainants would strategically file cases in courts far from where the accused resided, maximizing their hardship and forcing them to travel across the country for a frivolous matter.

The practical effect depends on which stage and provision is engaged; Section 223 should not be used as a substitute for Section 225.

What Section 223 BNSS actually requires

The key text is the first proviso to Section 223(1): the Magistrate shall not take cognizance without giving the accused an opportunity of being heard. Section 223 also prescribes examination on oath of the complainant and witnesses present, with exceptions for certain written complaints.

Read the official text of Section 223 BNSS. It does not state that every complaint requires a fourteen-day preliminary inquiry.

Three points keep the provisions distinct:

1) Opportunity of hearing before cognizance

Before taking cognizance on a complaint, the Magistrate must give the accused an opportunity of being heard. The form and scope of that opportunity may require case-specific legal analysis; it should not be confused with a full trial.

2) Section 223 contains no general 14-day inquiry rule

Section 223 does not prescribe a general fourteen-day deadline for a preliminary inquiry. Any timeline stated for a particular procedure must be traced to the correct statutory provision, rule or binding order.

3) Examination of the complainant and exceptions

Section 223 ordinarily requires the complainant and witnesses present, if any, to be examined on oath and the substance to be recorded and signed. Written complaints by a public servant acting in official duties or by a court, and complaints made over under Section 212, are treated by the stated exceptions.

• Examine the complainant and any witnesses under oath.
• Consider documentary evidence produced in support of the complaint.
• If deemed fit, order an investigation by the police or any other person.

Because the first proviso expressly provides an opportunity of hearing to the accused before cognizance, it is inaccurate to describe the Section 223 stage as universally ex parte.

Section 223 and Section 225 BNSS: distinct functions

To fully grasp the shift, a side-by-side comparison is helpful:

Practical implications for a private complaint

The complainant, the person named and the court may each be affected differently by examination, hearing, postponement of process and any later summoning order.

For the Complainant

A complainant should present a clear factual chronology, identify the alleged offences carefully, preserve supporting documents and be prepared for examination on oath where Section 223 requires it.

For the Person Named as an Accused

A person offered a hearing under Section 223 should obtain advice on the limited procedural stage and the record that may properly be placed before the Magistrate. The provision does not itself guarantee dismissal or prevent all later process.

• The social stigma of being named in a criminal case.
• The financial burden of legal fees and travel.
• The mental anguish of a protracted legal battle.
• The potential need to apply for anticipatory bail.

For the Indian Judicial System

The Magistrate must apply the correct provision at each stage and record the examination, hearing, inquiry or reasons required by the BNSS. Outcomes remain case-specific.

• Reduce the Pendency of Cases: Fewer frivolous cases will enter the trial stage, freeing up judicial time and resources for genuine matters.
• Enhance Judicial Due Diligence: It forces a more rigorous application of the judicial mind at the very first stage.
• Restore Faith in the Justice System: It signals a move towards a more fair and less oppressive legal process.

How legal counsel may assist

Private-complaint procedure can involve Sections 223 to 226 BNSS and related cognizance and process provisions. Counsel may assist either side with the complaint record, the statutory hearing, or a challenge to an order.

If You Are Planning to File a Private Complaint

A private complaint should be drafted with a precise factual chronology, supporting material and the correct legal provisions. Counsel may assist with:

• Draft a legally sound and well-documented complaint.
• Marshal credible evidence and prepare witnesses.
• Present the complainant and witnesses for examination where required and address the applicable complaint procedure.

If You Have Been Named in a Private Complaint

If you receive notice of a hearing or a summoning order, obtain advice promptly on the stage, scope of participation and available remedy. Counsel may:

• Review the complaint, notice and court order and identify the provision under which the matter is proceeding.
• Anticipate the legal course and prepare a robust defence strategy, including applying for anticipatory bail if necessary (read our BNSS bail laws guide and the difference between anticipatory and regular bail).
• Assess any challenge to a summoning or cognizance order under the correct procedural route, including the High Court’s inherent powers under Section 528 BNSS where legally available.

Frequently Asked Questions (FAQs) about Section 223 BNSS

Conclusion: read Section 223 with the full complaints procedure

Section 223 BNSS must be read with Sections 224 to 226 and the wider provisions on cognizance and process. It addresses examination and a pre-cognizance hearing opportunity; Section 225 separately addresses postponement of process and inquiry or investigation.

The result in any complaint depends on the allegations, supporting material, hearing, applicable procedure and the Magistrate’s order.

Discuss a private complaint or summoning issue

Kapil Dixit LLP may advise complainants or persons named in a private complaint on the applicable BNSS procedure and available remedies, subject to the facts and record.

Schedule a confidential consultation to discuss your case. We offer both in-person meetings at our Bengaluru office and secure video consultations for your convenience.