Private Complaints in BNSS: Empowering Citizens or Overloading Courts?

Paper Details 

Paper Code: RP-VBCL-01-2025

Category: Research Paper

Date of Publication: April 20, 2025

Citation: Animesh Pareek & Gariema Rai, “Private Complaints in BNSS: Empowering Citizens or Overloading Courts?", 1, AIJVBCL, 01, 01-10 (2025),

Author Details: Animesh Pareek, Research Fellow and Ph.D Scholar, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, West Bengal &

Gariema Rai, Consultant, Right Recruitment, Birmingham, United Kingdom

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ABSTRACT

A private complaint grants the victim the right to directly approach the judicial authority when police officials fail to fulfill their responsibilities regarding the victim's complaint. Under the new Bhartiya Nagarik Suraksha Sanhita (BNSS) this right seems to be shifted toward the accused, in contrast to the previous Code of Criminal Procedure, which was oriented towards the victim. The introduction of modifications, including a pre-cognizance hearing for the accused, justification by the police officer for the non-registration of a first information report, and the report from a superior authority in response to a complaint lodged against a public servant, directly impacts the principle of natural justice. This short note reveals the true essence of the provision concerning private complaints, while also emphasizing the modifications implemented under the BNSS. It also emphasizes various judicial decisions, underscoring the significance of the concept and the obligatory nature of requirements stipulated by the BNSS. The note emphasizes the potential ambiguity within the provisions and the complications it may engender. It concludes with the importance of the concept and the implications of the introduced changes on the nation's criminal justice system.

Keywords: Private Complaint, Private Person, Complaint to Magistrate, Section-223 BNSS.

INTRODUCTION

There is a legal mandate for the registration of a First Information Report (hereinafter FIR)in the criminal procedure. This mandate is also backed by the Apex Court decisions such as the landmark case of Lalitha Kumari v. State of UP & Ors,[1]which was again reaffirmed recently in the case of Sindhu Janak’s[2] decision of the Apex Court, whichheld thatwhenever the information reveals the commission of a cognizable offense, it is the responsibility of the police personnel to file a First Information Report (FIR).

This is the initial step for putting the criminal justice machinery into motion. Keeping in mind the workload, corruption, etc., in the police, which can cause the non-registration of FIR, that is, non-reporting of the occurrence of an offence, the legislature inserted another method ofputting them before the magistrate by making complaints called private complaints[3]. This mannerwas an essentialfeature of the Code of Criminal Procedure (hereinafter CrPC), and the same is retained in the Bhartiya Nagarik Suraksha Sanhita (hereinafter BNSS) with a few positive and negative modifications. The provision provides another way for the victim of an offense to put the criminal justice machinery into function, an essential feature for combating lousy policing.

The information that pertains to the commission of an offense is typically provided to the law enforcement officer, which is the primary point at which the criminal justice system begins to function. But when the police officer, though obliged under the code, do not perform their duties, the code gives another way for reporting it.The two other ways include, firstly, reporting it to the superintendent of policeand secondly to a magistrate.[4] Though filing of a private complaint do not require the filing of a police complaint, but court had held that it provide a clear context for the magistrate regarding the actions taken by the law enforcement agencies[5] and the seriousness of the allegations of the complainant and his diligence in seeking justice[6]. This article first explains theprocedure of making private complaints under BNSS, then puts light upon the changes made in the process when compared to CrPC, and at the end, evaluates the amendments made and their impact on the criminal justice system.

PROVISION: PRIVATE COMPLAINT

In spite of the fact that it is the responsibility of the police to report a crime,[7]the failure to comply such responsibility is usually reported. This not only hurts the victim or informant but also complicates the welfare state's goals to heal victims as well as society from the effects of crime. Whenever a police officer denies their obligation as required under Section 173(1) BNSS., the victim or informant may approach a superior police official (relevant Superintendent of Police)[8], by sending the information in writing and by post. Once satisfied, suchpolice officer will either personally look at the matter or assign an inquiry to any subordinate police officer as per legal procedure to reveal the commission of a cognizable offence. The same power to forward the complaint to the superintendent of police was provided in CrPC[9]. Now, in the BNSSit has been altered, whereby the complainant is empowered to make an application to the magistrate in case the superintendent does not perform the duties as per the procedure given. Thereby providing another way to run the machinery. Such complaints are called Private Complaints, and the procedure to be followed by the magistrate in such complaints is stipulated under Section 223 of the Bhartiya Nagarik Suraksha Sanhita (previously under Section 200 of the Code of Criminal Procedure).

Procedure:

Filing the Complaint and Conducting the Investigation:

A complaint can be made to the Magistrate, when the Superintendent of Police fails to performs its duties in the stipulated manner[10] or under Section 210 of BNSS (previously under Section-190 CrPC), whereby the magistrate is empowered to take cognizance of the offence.[11]The Magistrate of First Class is empowered under this provision while the Second-Class magistrate is empowered with such powers by the Chief Judicial Magistrate for taking such cognizance.[12] The magistrate can take cognizance of the complaint of any offense made by, firstly, any complaint of facts even by one who is authorized under any special law[13], secondly upon a police report (including made in electronic mode)[14], or thirdly by any person other than a police officer in whose knowledge the offense has been committed[15].

The magistrate, upon receiving the complaint, has the authority to order an investigation of a cognizable case to be carried out by the police officer in the event that a cognizable offence has been committed.[16]Sanhita outlines a few requirements that must be met before such investigations can be ordered. These include the submission of an affidavit in support of the application that was made in accordance with Section 173(4), the conduct of reasonable inquiries, and the consideration of the submission that was made by the police officer within this context. To put it another way, the new law requires that the magistrate conduct an investigation after reviewing the complaint and taking into consideration the police officer's submission regarding the reasons for not registering the FIR. This is done before the magistrate can order an investigation to be conducted by a police officer into a private complaint. In situations where the complaint is determined to be vexatious, it is possible for the court to dismiss it and prevent it from wasting the court's time.[17]

Such additions have pros and also cons in the criminal system. On one side, prohibiting frivolous complaints, increasing the accountability of the person making the complaints, and providing the police officer to submit reasons for non-registration of FIR. While on the other, making it a time-consuming process and giving opportunity to the police official to manipulate the views of the magistrate. Therefore, it is required to be used consciously and cautiously.

Examination of the Complaint by the Magistrate:

The process of examining the complaint is provided under Chapter-XVI[18] of BNSS, from Section- 223 to 226. The examination leads to taking cognizance, dismissal or return of the complaint to the proper court. This Chapter lays down the procedure to deal with private complaints. The object of the procedure prescribed by this Chapter, which is entitled "Complaints to Magistrates", is the separation of unfounded from substantial cases at the outset, and to prevent innocent persons from being bought into the police courts and subjected to the annoyance of frivolous charges[19].

The code makes it mandatory to examine the witnesses and the complainant on oath and also puts the substance of such examination into writing and signed by the complainant, witnesses, and the magistrate.[20] A few exceptions exist whereby the complainant and witnesses are  exempted from such examination, that is when the complaint comes from a court or public servant while discharging its duties[21] or if the magistrate makes over the complaint to another magistrate for inquiry or trial[22].

The major change done in the provision was making it mandatory for the magistrate to give the accused an opportunity to be heard before taking cognizance of the offence,[23] as a mandatory and essential procedural step in complaint cases.[24]Thereby providing a place to the accusedto show his side of the case[25], which can assist the magistrate in determining as to whether the cognizance of the case should be taken or not. This new addition in the code can be beneficiary for the judicial system in order to filter the frivolous complaints made and possibly to reduce chances of false implication & to allow accused persons to avoid being summoned in false criminal cases[26]but at the same time this additional step will be time consuming creating a significant procedural hurdle, potentially delaying justice and discouraging complaints, especially against individuals in positions of power.[27]At the same time the depositions made by the accused during this opportunity can be used against him, which is directly in violation of Right against self incrimination.[28]

Furthermore, a magistrate lacks the authority to take cognizance of a complaint against a public servant for actions undertaken in the course of official duties without first hearing from the public servant and obtaining a report from the public servant's superior officer detailing the facts and circumstances of the incident.[29]

In instances where a complaint is filed in an improper court, if the complaint is submitted in writing, it shall be returned for presentation in the appropriate court; otherwise, the complainant shall be directed to the correct court.[30] This ensures that the complaint is made before the proper forum which can take proper steps for the adjudication.

In order to protect the accused from unnecessary exploitation or harassment, the magistrate is empowered to postpone the issue of process in situations where the accused is residing at a place beyond the area in which he exercises his jurisdiction. He can inquire the case himself or can direct an investigation to be made by the police officer, for the purpose of deciding whether or not there are sufficient grounds for proceeding further[31]. This is done, in order to filter out the frivolous or baseless complaints and to ensure that the resources are used to deal with the legitimate cases only.

If the Magistrate concludes that a prima facie case is established after examining evidence, he is empowered to direct the appropriate police to investigate the offense under Chapter XII of the Code of Criminal Procedure and to submit a report, as well as to take cognizance of the offense and issue process to the accused.[32]. If he determines that the complaint does not disclose any offense that warrants further action, he is authorized to dismiss the complaint.[33]

CHANGES AND THEIR IMPACT

BNSS, 2023 introduces notable changes in the complaint procedures to the magistrate compared to the previous legislation CrPC. The BNSS mandates a "pre-cognizance hearing," which allows the accused to present their case to the magistrate before the magistrate decides to take cognizance of the offense or order a police investigation. This concept of a pre-cognizance hearing is a new introduction in the Indian legal system and is absent in the CrPC.This parallel hearing occurring before the framing of chargenot only undermines the object and purpose of taking cognizance but also renders the framing of charges futile.[34]The primary amendment occurs in Section 173, where clause 4 allows for a complaint to be filed with the magistrate if the police officer or superintendent of police neglects to meet the obligations outlined in the code, a provision not present in the analogous Section 154 of the CrPC. The magistrate's power to order an investigation is limited in the BNSS.

Further, the magistrate's power to order investigation is limited in the BNSS. While under CrPC, magistrates could order an investigation based on private complaints[35], the BNSS, under Section- 175 (3)requires them to consider the police's reasoning for not registering the FIR, and also listen to the accused person's perspective before taking cognizance of the offence[36].

In the preceding code, defendants were afforded the opportunity to present their case after cognizance was established and before the charges were formulated. I believe that the principle of natural justice is misapplied during the "pre-cognizance" phase and is prone to negative repercussions, even though the new code ostensibly protects the rights of the accused before any action is initiated against them, in alignment with natural justice principles. This may be misapplied owing to the conventional approach of law enforcement to the judicial process. The "pre-cognizance" hearing, unacknowledged in criminal jurisprudence, may serve as a tool for powerful, unscrupulous individuals to manipulate the judiciary, leading to a miscarriage of justice. For the instances where the false complaints are lodged despite hearing the accused, the aggrieved will still have the other remedies available, as were available under the CrPC, such as applying to quash the magistrate’s order by a revision petition or criminal writ petition[37].Moreover, the manner, mode and timing of the notice sent to the accused is not clear, that is it should be issued the moment the complaint is received and registered or after some basic inquiry, doubts like these needs to be answered.[38]Other questions that remain are whether the accused will be informed of all the evidence against him. The Karnataka High Court has established the requirements for affording opportunities to the accused; however, a ruling from the Supreme Court is necessary to standardize the procedure nationwide.

In the case of a public servant or judge, the old code effectively provided blanket protection with a few exceptions[39]. Sub-clause (2) of Section 223 of the BNSS allows any individual to submit a private complaint. However, the erring public servant is granted a pre-cognizance opportunity to be heard, as well as a report from superior authorities regarding the alleged offense committed by the public servant "in the course of the discharge of his official functions or duties" is required before taking cognizance. Nevertheless, when Sections 218 and 223 of the BNSS are read in conjunction, they confuse the reader. One the one hand, Section 218 BNSS forbids any court from taking cognizance of such an offense unless it has received prior sanction, while Section 223 BNSS allows a private individual to prosecute a public servant as previously mentioned.

The new procedure under Section 218 of the BNSS mandates that the competent authority must grant sanction; however, if the authorities fail to do so within 120 days, the sanction is considered to have been obtained, and the public servant or judge may be prosecuted. It is uncertain whether sanction is necessary for complaints submitted by private individuals under Sections 210 and 223(2) of the BNSS, as a "report containing facts and circumstances of the incident from the officer superior to such public servant" as defined under Section 2(b) of 223 BNSS cannot be equated with "sanction." Consequently, it is conceivable that the judicial process may be impeded until the aforementioned provisions are resolved by constitutional courts. Till the law is silent over the point, it can be assumed that no prior sanction is required in the case filed through this procedure, but it comes into direct conflict with the other provision based on the same principle.

This modification in the new law appears to be inspired by the Supreme Court's decision in Anil Kumar v. M.K. Aiyappa[40], which established that a Magistrate is prohibited from ordering an investigation against a public servant while exercising their powers under Section 156(3) of the CrPC without prior approval. Nevertheless, the Supreme Court in Manju Surana v. Sunil Arora & Ors. [41]questioned the validity of the perspective adopted in the Anil Kumar case and directed the matter to a bigger bench for resolution. The reference is currently pending. Despite the fact that the new provision in BNSS 175(4) does not strictly necessitate a sanction, it does establish a new requirement that a report from a senior officer be obtained. It is possible that these changes will have the unintended consequence of increasing the bureaucratic hurdles that complainants must overcome in order to seek justice against public servants. As a result, individuals may be dissuaded from filing complaints, which will result in investigations taking longer than expected. At the same time, this will provide the judicial system with assistance in deciding how to proceed with the cases that have been filed against public servants. For the purpose of preventing someone from abusing this procedure, a safeguarding system is required.

CONCLUSION

Whenever the police do not comply with the statutory duty that is placed on them, the victims are given with relief of lodging of a private complaints, the significance of which is not required to be explained in the Indian scenario. When compared to the previous criminal procedural code, the BNSS retains the essence of procedure with regard to the establishment of Private Complaints; however, a few modifications have been made to the same concept. On the whole process, these modifications had repercussions that were both positive and negative. A more refined filtration process, protection of the accused from unnecessary harassment, and making it mandatory to listen to the accused before taking cognizance are all things that should be considered.An additional step along the same path is to listen to the police officer before taking cognizance of the situation. When the accused is a public servant, a different procedure is required to be followed. This procedure involves calling the report from the accused's superior. Additionally, there is confusion regarding the requirement of sanction, which needs to be clarified. Consequently, the provision of private complaints is maintained under the new laws, with a few amendments that are required to be followed cautiously in order to have a positive impact on the procedure.

* Research Fellow and Ph.D Scholar, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, West Bengal.

** Consultant, Right Recruitment, Birmingham, United Kingdom.

[1]Lalitha Kumari v State of UP & Ors [1994] 4 SCC 260.

[2]Sindhu Janak Nagargoje v State of Maharashtra[2023] SCC OnLine SC 631.

[3]M. Sethi, ‘Private Complaint: A Remedy’ [2022] 4 Indian JL & Legal Rsch 1.

[4]Bhartiya Nagarik Suraksha Sanhita 2023, s 173(4), see alsoRatanlal and Dhirajlal, Bharatiya Nagarik Suraksha Sanhita (23rdedn, Lexis Nexis 2023) 523.

[5]N. ShanthiMadhuresanv Inspector of Police[2017] SCC OnLine Mad 28782.

[6]Jafar Ali Patel vs. The State and Ors.[2019] MANU/KA/0763/2019.

[7]Bhartiya Nagarik Suraksha Sanhita 2023, s 173 (1).

[8]Bhartiya Nagarik Suraksha Sanhita 2023, s 173(4).

[9]The Code of Criminal Procedure, s154(3), see also Surendra Malikand SudeepMalik, Supreme Court on Criminal Procedure Code & Criminal Trial (2ndedn, Eastern Book Company 2015) 504.

[10]Bhartiya Nagarik Suraksha Sanhita 2023, s 173(4).

[11]Ratanlal and Dhirajlal, Bharatiya Nagarik Suraksha Sanhita(23rdedn, Lexis Nexis 2023) 523.

[12]Bhartiya Nagarik Suraksha Sanhita 2023, s 210(2).

[13]Bhartiya Nagarik Suraksha Sanhita 2023, s 210(1)(a).

[14]Bhartiya Nagarik Suraksha Sanhita 2023, s 210(1)(b).

[15]Bhartiya Nagarik Suraksha Sanhita 2023, s 210(1)(c).

[16]Bhartiya Nagarik Suraksha Sanhita 2023, s 175(3).

[17] D.N Sen, The Code of Criminal Procedure (1stedn, Premier Publishing Company 2004) 751.

[18]Bhartiya Nagarik Suraksha Sanhita 2023 Ch 16.

[19]Sheik Meeran Saib v Ratnavelu Reddy AIR [1915] Mad 128.

[20]Bhartiya Nagarik Suraksha Sanhita 2023, s 223(1).

[21]Bhartiya Nagarik Suraksha Sanhita 2023, s 223(1)(a).

[22] Bhartiya Nagarik Suraksha Sanhita 2023, s 223(1)(b).

[23]Bhartiya Nagarik Suraksha Sanhita 2023, s 223(1) Proviso.

[24]Basanagouda R. Patil v Shivananda S. Patil[2024] SCC OnLine Kar 96.

[25] Srikanth Chintala, ‘Police will not register FIRs and magistrates cannot: Welcome to the regime of new criminal laws’, (Bar & Bench, 3 Aug 2024)<https://www.barandbench.com/columns/police-wont-register-firs-magistrates-cannot-regime-of-new-criminal-laws> accessed 20 December 2024.

[26]KV Singhand Madhavi Dutta, ‘Allowing the accused to put their case’ (2024) Indian Business LawJournal<https://law.asia/bharatiya-nagarik-suraksha-sanhita/> accessed 12 January 2025.

[27] See Archita Garg, ‘The New Criminal Laws: Just a Break from the Colonial Past or a Vision for a Citizen-Friendly Future?’(2023) 4 Jus Corpus LJ 379.

[28]The Constitution of India 1950, Art 20(3).

[29]Bhartiya Nagarik Suraksha Sanhita 2023, s 223(2).

[30]Bhartiya Nagarik Suraksha Sanhita 2023, s 224.

[31]Bhartiya Nagarik Suraksha Sanhita 2023, s 225.

[32]Minu Kumari v State of Bihar II [2006] CCR 137 (SC).

[33]Bhartiya Nagarik Suraksha Sanhita 2023, s 226.

[34]State of Orissa v Debendra Nath Padhi [2005] 1 SCC 568.

[35]AlequePadamsee And Ors v Union Of India[2007] 6 SCC 171.

[36]Bhartiya Nagarik Suraksha Sanhita 2023, s 223(2).

[37] KV Singh and Madhavi Dutta, ‘Allowing the accused to put their case’ (Indian Business Law Journal, 24 Dec 2024)<https://law.asia/bharatiya-nagarik-suraksha-sanhita/> accessed 12 January 2025.

[38]Bharat Chugh, ‘Opportunity to the (Proposed) Accused before taking cognizance on a complaint A Curious New Provision in the BNSS ’ (The Blog of Bharat Chugh, 9 July 2024) <https://bharatchugh.in/2024/07/09/opportunity-to-the-proposed-accused-before-taking-cognizance-on-a-complaint-a-curious-new-provision-in-the-bnss/> accessed 15 October 2024.

[39]Code of Criminal Procedure 1973, s 197. (Now s. 218 Bhartiya Nagarik Suraksha Sanhita).

[40]Anil Kumar v M.K. Aiyappa[2013] 10 SCC 705.

[41]Manju Surana v Sunil Arora & Ors[2018] 5 SCC 557.