CONDITIONS REQUISITE FOR INITIATION OF CRIMINAL PROCEEDINGS

[DR.MARIAPPAN GOVINDARAJAN]

Chapter XV (Sections 210 to 222) of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short) provides the conditions required for initiation of criminal proceedings in the criminal court.

Cognizance of Magistrate

Section 210 provides that any Magistrate of First Class and any Magistrate of Second Class as authorised by the Chief Judicial Magistrate may take cognisance of any offence upon-

• receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;
• a police report (submitted in any mode including electronic mode) of such facts;
• information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Transfer of cases

If any Magistrate takes cognisance of an offence upon, the accused may be informed, before taking evidence, that he is entitled to have the case inquired into or tried by another Magistrate.  In such cases or if the accused objects for the furtherance of the proceedings the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

Making over the cases

If any offence is taken cognizance by a Magistrate, the Chief Judicial Magistrate may make over the said case to any other Magistrate, competent to hear the case, for inquiry of trial.  The Magistrate of first class may also transfer the cases as per the general or specific order of the Chief Judicial Magistrate may transfer the case to the said Magistrate for inquiry or trial.

Cognizance by Sessions Court

The Court of Session shall not take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under BNSS.

Additional Sessions Judge

An Additional Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try.

Contempt of lawful authority

No Court shall take cognizance of-

• any offence under Chapter XIII [of contempt of lawful authority of public servants (Sections 206 to 223)] of Bhartiya Nyaya Sanhita, 2023 (‘BNS’ for short); or
• of any abetment of, or attempt to commit, such offence; or
• of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate or of some other public servant who is authorised by the concerned public servant so to do.

No Court shall take cognisance of-

• any offence punishable under sections 229 to 233 (both inclusive), 236, 237, 242 to 248 (both inclusive) and 267 of BNS, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; or
• any offence under section 336 (1) or punishable under section 340 (2) or section 342 of BNS, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or
• of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified above; or

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

Threatening

Section 232 of BNS provides punishment for threatening to give false evidence.  Section 216 of BNSS provides that a witness or any other person may file a complaint in relation to an offence under section 232 of the BNS.

Criminal conspiracy

Section 217 of BNSS provides that no Court shall take cognizance of—

• any offence punishable under Chapter VII or under section 196 (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony), section 299 (public servant disobeying direction under law) or section 353 (1) [Statements conducing to public mischief] of the BNS; or
• a criminal conspiracy to commit such offence; or
• any such abetment, as is described in section 47 (abetment in India of offences outside India) of the BNS,

except with the previous sanction of the Central Government or of the State Government.

No Court shall take cognizance of any offence punishable under section 197 (imputations, assertions prejudicial to national integration) or section 353(2) or (3) of the BNS; or  a criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 61(2) of the BNS, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings.  where the criminal conspiracy is one to which the provisions of section 215 (refusing to sign statement) apply, no such consent shall be necessary.

Prosecution against Judges and public servants

In case of Judges or public servants who cannot be removed without the approval of the Government, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013.

No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

Prosecution for offences against marriage

No Court shall take cognizance of an offence punishable under-

• section 81 – Cohabitation caused by man deceitfully including belief of lawful marriage;
• section 82 – marrying again during llifetime of husband or wife;
• section 83 – marriage ceremony fraudulently gone through without lawful marriage;
• section 84 – enticing or taking away or detaining with criminal intent a married woman,

of the BNS except upon a complaint made by some person aggrieved by the offence. 

No Court shall take cognizance of an offence under section 64 (rape) of the BNS, where such offence consists of sexual intercourse by a man with his own wife, the wife being under 18 years of age, if more than one year has elapsed from the date of the commission of the offence.

Cruelty

No Court shall take cognizance of an offence punishable under section 85  (husband or relative of the husband of a woman subjecting her to cruelty) of the BNS except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

Sexual intercourse

No Court shall take cognizance of an offence punishable under section 67 (sexual intercourse by husband upon his wife during separation) of the BNS where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

Defamation

Section 356(1) of BNS provides that whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

No Court shall take cognizance of an offence punishable under section 356 (defamation) except upon a complaint made by some person aggrieved by the offence.  Every complaint shall set forth the facts which constitute the offence alleged, the nature of such offence and such other particulars as are reasonably sufficient to give notice to the accused of the offence alleged to have been committed by him.  No Court of Session shall take cognizance of an offence unless the complaint is made within 6 months from the date on which the offence is alleged to have been committed.

If the offence of defamation is alleged to have been committed against the President of India, the Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the case being committed to it, upon a complaint in writing made by the Public Prosecutor.

No complaint shall be made by the Public Prosecutor except with the previous sanction of the State Government, —

(i) in the case of a person who is or has been the Governor of that State or a Minister of that Government;

(ii) in the case of any other public servant employed in connection with the affairs of the State.

In any other case the previous sanction of the Central Government is to be obtained.