Section 223 – Bharatiya Nagarik Suraksha Sanhita(BNSS) – Examination Of Complainant.

Code:

(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

Explanation:

This section outlines the procedure for a Magistrate to take cognizance of an offence upon a complaint. It states:

1. Cognizance of Offence: A Magistrate with jurisdiction, when receiving a complaint, must examine the complainant and any present witnesses under oath. The gist of this examination needs to be documented in writing and signed by the complainant, witnesses, and the Magistrate.
2. Accused’s Right to Be Heard: No cognizance of an offence can be taken without giving the accused an opportunity to be heard.
3. Exceptions to Examination: When the complaint is in writing, the Magistrate can skip the examination of the complainant and witnesses in these situations:
   • Public Servant or Court Complaint: If a public servant acting in their official duty or a court has filed the complaint.
   • Transfer to Another Magistrate: If the Magistrate transfers the case to another Magistrate under Section 212.
4. Re-examination Upon Transfer: If the Magistrate examines the complainant and witnesses before transferring the case to another Magistrate under Section 212, the receiving Magistrate does not need to re-examine them.
5. Complaints Against Public Servants: If the complaint is against a public servant, the Magistrate must follow the procedure outlined in Section 217.

Illustration:

A person files a complaint alleging theft against another. The Magistrate, upon receiving the complaint, would examine the complainant under oath, record the details, and then inform the accused of the allegations and provide them a chance to respond.

Common Questions and Answers:

1. Q: Does the Magistrate have to examine the complainant and witnesses in every case?
   A: No, there are exceptions for written complaints from public servants or courts, and when the case is transferred to another Magistrate.
2. Q: What happens if the accused is not given a chance to be heard?
   A: The Magistrate cannot take cognizance of the offense. This violates the accused’s right to a fair hearing.
3. Q: What is the significance of the written record of the examination?
   A: It acts as evidence and a record of the initial proceedings, ensuring transparency and accountability.