In the Indian criminal justice scheme, if police administrative machinery fails—such as a station officer refusing to register an FIR under Section 173—citizens are not left remedi-less. The alternative pathway is filing a Private Complaint directly before a Judicial Magistrate.
Because private citizen complaints can easily be motivated by personal vendettas, civil rivalries, or malice, the criminal court cannot issue arrest warrants or summons blindfolded. There must be a preliminary judicial audit.
Section 223 provides the baseline starting engine. When a Magistrate takes cognizance of an offence on a complaint, they are mandatorily bound to examine upon oath the complainant and any witnesses present.
The Magistrate is NOT required to examine the complainant under oath in the following scenarios:
Public Servant Complaint: Made in writing by a public servant acting or purporting to act in discharge of their official duties.
Court Complaint: Made in writing by a Court under Chapter XXVI (e.g., prosecution for perjury/contempt of lawful authority under Section 215 BNSS).
Transferred Cases: If the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212 BNSS (Old CrPC 192) after already examining the complainant.
Under the old CrPC 200, the accused had absolutely zero rights to speak, interject, or participate in pre-cognizance inquiry. In Chandra Deo Singh v. Prokash Chandra Bose (1963), the Supreme Court ruled that an accused is a complete stranger to the pre-process phase.
The New BNSS Proviso to Section 223: Mandates that no cognizance of an offence shall be taken without giving the accused an opportunity of being heard.
Do not confuse Section 173(8) or Section 156(3) with Section 223. Sec 223 is strictly judicial and happens post-filing of a formal Private Complaint. The exam examiner loves asking if a Magistrate can issue summons immediately without examining the complainant—the answer is a strict NO (unless falling under the public servant exceptions).
Laymen often fail to distinguish territorial or subject-matter jurisdictions. If a complainant files a petition with an incompetent Magistrate, Section 224 establishes a redirect protocol instead of dismissal.
The Magistrate shall return it for presentation to the proper Court with an endorsement in writing to that effect.
The Magistrate shall direct the complainant to the proper Court.
Even after examining a complainant under Section 223, a Magistrate may still harbor doubts. Section 225 acts as the Judicial Investigation Pause Button. It allows the court to delay issuing summons or warrants ("process") until further investigation validates the case.
✍️ Key Topper Insight: This mandatory check was added to block malicious out-of-state complaints filed purely to harass clean, law-abiding citizens.
To resolve doubts before proceeding, the Magistrate has two independent statutory path options:
The Magistrate's power to direct a police investigation is strictly blocked in the following scenarios:
Section 226 is the final stage of the Chapter XVI filter. It provides the statutory shield against malicious prosecution. If the complainant's statements and subsequent inquiry findings fail to prove a prima facie case, the Magistrate dismisses the case immediately.
The Magistrate must briefly record their reasons for dismissal in the written order. An arbitrary dismissal without clear, recorded reasons is legally void and subject to high-court revision.
| BNSS (2023) | CrPC (1973) | Subject Matter | Core Nature |
|---|---|---|---|
| Sec 223 | Sec 200 | Examination of Complainant | MANDATORY (with exceptions) |
| Sec 224 | Sec 201 | Incompetent Magistrate Protocol | MANDATORY REDIRECT |
| Sec 225 | Sec 202 | Postponement of Issue of Process | HYBRID / OUT OF JURISDICTION MANDATORY |
| Sec 226 | Sec 203 | Dismissal of Complaint | MANDATORY WRITTEN REASONS |
No right of audience. The accused could not participate or offer explanations before summons were issued. Highly prone to harassment campaigns.
Sec 223 explicitly enforces the Audi Alteram Partem rule. Accused is given a statutory opportunity to be heard before the Magistrate can issue summons.
Physical presence of the complainant and witnesses was strictly required in court for physical pen-ink signatures on the examination register.
Coupled with Section 530 BNSS, examinations, depositions, and signatures can legally be completed via authenticated electronic communications or audio-video conferencing.
While the 2008 CrPC amendment introduced the optional "postponement of process" if the accused resided outside jurisdiction, the BNSS cements this as an unconditional mandate under Section 225. A Magistrate who fails to postpone and investigate cases involving out-of-district accused commits a reversible jurisdictional error.
A landlord attempts to evict an out-of-district tenant by filing a private complaint under Section 223 alleging the tenant stole kitchen appliances. Under Section 225 BNSS, because the tenant resides outside the boundary, the Magistrate must postpone the warrant and order a local police inquiry. The police report shows the appliances are in the landlord's possession. The Magistrate records these facts and dismisses the complaint under Section 226. The innocent tenant avoids facing a traumatic trial.
Believing a Magistrate can order a police investigation under Section 225 inside an exclusive Sessions Court trial.
✔️ CORRECT LAW:For exclusive Sessions cases, police investigations are strictly barred. The Magistrate must conduct their own inquiry.
Thinking that public servants filing written official complaints must be examined under oath under Section 223.
✔️ CORRECT LAW:Public servants acting in an official capacity are fully exempt from the oath and signature requirement of Section 223.
1. Which of the following introduces the mandatory requirement to give an accused an opportunity of being heard before taking cognizance under BNSS Sec 223?
A) Section 223 Main Clause | B) Proviso to Section 223 | C) Section 225 | D) Section 226
2. A private complaint alleging rape (exclusively triable by Court of Session) is filed. Can the Magistrate order a police investigation under Section 225?
A) Yes, police investigation is mandatory | B) Yes, if the accused resides in another state | C) No, because Sessions-exclusive cases require Magistrate self-inquiry | D) Yes, at the discretion of the court
3. When the accused resides outside the territorial jurisdiction of the Magistrate, the postponement of process is:
A) Discretionary | B) Mandatory | C) Forbidden | D) Subject to police permission
4. Under Section 224, if an oral complaint is made to an incompetent Magistrate, the Magistrate must:
A) Dismiss the oral complaint | B) Record it and write reasons | C) Direct the complainant to the proper Court | D) Register an FIR
5. Under Section 226, any order of dismissal without recorded reasons is:
A) Valid if signed by complainant | B) Legally void and subject to revision | C) Protected by judicial immunity | D) Curable under Sec 482
Subjective Prompts & Topper Model Answers:
Q1. Discuss the impact of the newly added proviso to Sec 223 of BNSS compared to the old CrPC regime.
Answer Blueprint: Overrules 'Chandra Deo Singh (1963)'. Embeds 'audi alteram partem' at pre-cognizance stage. Balances citizen safety from fake claims but introduces potential early trial friction.
Q2. Can a Magistrate order a police investigation under Sec 225 without examining the complainant under Sec 223?
Answer Blueprint: No, unless the complaint is filed by a Court or Public Servant. The general complainant examination under oath is a strict condition precedent.