Section 200 CrPC vs Section 223 BNSS — Private Complaint Procedure

In India, private criminal complaints are now examined under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 200 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The key change: no cognizance without giving the accused an opportunity of being heard, and complaints against public servants need a superior officer's report.

At a glance

What changed

• New — a hearing before cognizance. The first proviso to s.223(1) reads: "Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard". Section 200 CrPC had nothing like it, as the Supreme Court noted in Kushal Kumar Agarwal v. Directorate of Enforcement (para 4).
• New — sub-section (2), complaints against public servants. No 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) the 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". Both conditions must be met.
• Modified — the opening words. "A Magistrate taking cognizance" becomes "A Magistrate having jurisdiction while taking cognizance".
• Identical — the examination itself. The Magistrate "shall examine upon oath the complainant and the witnesses present, if any", and the substance "shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate".
• Minor edit — the exemption proviso. The CrPC's first proviso ("Provided that, when the complaint is made in writing") is now the second proviso ("Provided further that when the complaint is made in writing"), without the comma. Clause (a), a complaint made by a public servant acting or purporting to act in the discharge of his official duties or by a Court, is unchanged. Clause (b), making over the case to another Magistrate, now cites s.212 instead of s.192.
• Minor edit — the re-examination proviso. "Provided further that if the Magistrate makes over the case to another Magistrate under section 192" becomes "Provided also that … under section 212". The latter Magistrate still "need not re-examine them".
• Minor edit — the sections that follow. CrPC ss.201–204 become BNSS ss.224–227. Section 225(1) repeats s.202(1), including the compulsory-postponement words added by Act 25 of 2005 (w.e.f. 23 June 2006). Section 227(1) adds a proviso that "summons or warrants may also be issued through electronic means".
• New, outside s.223 — electronic mode. Section 530(ii) BNSS lists "examination of complainant and witnesses" among the proceedings that "may be held in electronic mode".

Statutory text (relevant extract)

Extract — Section 200, CrPC (main paragraph):

A Magistrate 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:

Extract — Section 223, BNSS (sub-section (1), first proviso, and sub-section (2)):

(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 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: … (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.

How it works — the steps

1. A complaint is made. Under s.2(1)(h) BNSS a "complaint" is an allegation, oral or written, made to a Magistrate that some person has committed an offence; it "does not include a police report". A Magistrate of the first class, or a specially empowered second-class Magistrate, may take cognizance on it under s.210(1)(a).
2. Wrong court. If the Magistrate is not competent to take cognizance, s.224 requires him to return a written complaint with an endorsement, or direct the complainant to the proper Court if it was oral.
3. Examination on oath (s.223(1)). The complainant and any witnesses present are examined on oath; the substance is written down and signed by each of them and by the Magistrate. No examination is needed for a written complaint by a public servant acting in his official duties or by a Court, or where the case is made over under s.212.
4. The accused's opportunity to be heard (first proviso). Cognizance cannot be taken until the accused has had this opportunity. The text does not say when in the sequence it falls, what material may be used, or whether it is oral or written. Arguments that the hearing is confined to the complaint and its documents, and that none is due on supplementary complaints, were expressly left open in Kushal Kumar Agarwal (paras 8–9).
5. Complaints against public servants (s.223(2)). For an offence alleged in the course of official functions or duties, the public servant's assertions and the superior officer's report are both preconditions. Where the accused is a Judge, Magistrate or public servant removable only with Government sanction, s.218(1) separately bars cognizance without previous sanction.
6. Optional inquiry or investigation (s.225). The Magistrate "may, if he thinks fit", and "shall" where the accused lives beyond his area, postpone process and inquire himself or direct an investigation. He cannot direct an investigation where the offence is triable exclusively by the Court of Session, and in that case he must call on the complainant to produce all his witnesses (s.225(1)–(2)).
7. Dismissal or process. If there is no sufficient ground, the complaint is dismissed with brief reasons (s.226). If there is, summons or warrant issues (s.227), but only after a list of prosecution witnesses has been filed (s.227(2)). A copy of a written complaint goes with it, and any process fees must be paid (s.227(3)–(4)).

Worked example (from a decided case). An Enforcement Directorate complaint under the Prevention of Money Laundering Act, 2002 was filed on 2 August 2024 and cognizance was taken on 20 November 2024 without hearing the accused (the date given in para 10 and in the case-arising-from line; para 7 prints "20th April, 2024", which cannot be right for a complaint filed in August 2024). Step 4 was skipped, so the Supreme Court set aside the cognizance order and remitted for a hearing (Kushal Kumar Agarwal, paras 3, 10, 12).

What this means in practice

• For the complainant. Bring your witnesses on the day of examination, since s.223(1) covers "the witnesses present"; the examination may be held in electronic mode (s.530(ii)). Expect the accused to be heard before cognizance. File the list of prosecution witnesses early, as no process issues without it (s.227(2)).
• For the accused. The proviso gives an opportunity of being heard; the text does not mention evidence or cross-examination and is silent on the scope of the hearing. What Kushal Kumar Agarwal shows is the remedy where the opportunity is denied. The Supreme Court set aside the cognizance order and directed a hearing (paras 10, 12); it did not quash the complaint, and it said it expressed no opinion on the merits (para 11).
• For a public servant accused. Check whether both s.223(2) conditions were met: your own opportunity to make assertions, and receipt of the superior officer's report. The section does not say who must call for that report. On a reading, s.223(2) covers "a public servant" generally, while s.218(1) sanction applies only to the narrower class it names. Section 175(4) sets a parallel filter where a Magistrate orders investigation of such a complaint.
• For the Magistrate. Record that the accused was given an opportunity of being heard, and show the application of mind. Mehmood Ul Rehman (paras 23–24) requires "sufficient indication" of satisfaction, though not a speaking order. On dismissal, brief reasons are mandatory (s.226).
• For the advocate on a special-law complaint. Section 210(1)(a) now names complaints "filed by a person authorised under any special law". Kushal Kumar Agarwal applied s.223 to an Enforcement Directorate complaint (para 5). On a reading, the same applies to other special-law complaints governed by Chapter XVI.

Judgments that still matter

Apart from the new proviso and sub-section (2), the operative words of s.223(1) repeat s.200 CrPC, and ss.225–227 repeat ss.202–204. On a reading of the text, judgments construing those words remain relevant to the BNSS sections. The first construes s.223 itself.

Kushal Kumar Agarwal v. Directorate of Enforcement, [2025] 5 S.C.R. 730 (2025 INSC 760), decided 9 May 2025. Abhay S. Oka J., for a bench with Ujjal Bhuyan J., held that s.223 BNSS corresponds to s.200 CrPC but that s.200 has no provision like the first proviso (para 4). Because a PMLA complaint is governed by the complaint chapter, s.223 applied to one filed after 1 July 2024 (para 5). The proviso "puts an embargo on the power of the Court to take cognizance" (para 6). The cognizance order was "set aside only on the ground of non-compliance with the proviso" (para 10). The Court kept open the Additional Solicitor General's contentions on the scope of the hearing and on supplementary complaints (paras 8–9). Why it matters now: it construes the new proviso and shows the remedy for breach: a fresh hearing.

M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate, [1997] Supp. 5 S.C.R. 12 (1997 INSC 714), decided 4 November 1997. D.P. Wadhwa J., for a bench with Sujata V. Manohar J., quashed a Prevention of Food Adulteration Act complaint and proceeding against a company that had lent its brand name to a beverage, because the complaint and preliminary evidence made out no case against it. "Criminal law cannot be set into motion as a matter of course." The summoning order must show that the Magistrate "has applied his mind to the facts of the case and the law applicable thereto". In the Court's words, "It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused"; he may put questions to the complainant and witnesses. The reported text has no paragraph numbers; the passage is at pp.26–27. Why it matters now: the examination on oath under s.223(1) is that preliminary evidence.

National Bank of Oman v. Barakara Abdul Aziz, [2012] 11 S.C.R. 500 (2012 INSC 556), decided 3 December 2012. K.S. Radhakrishnan and Dipak Misra JJ. held that the s.202 CrPC inquiry, which tests whether process should issue, is conducted "purely from the point of view of the complainant without at all adverting to any defence that the accused may have" (para 6). Because the accused lived outside the Chief Judicial Magistrate's jurisdiction, the 2005 amendment made an inquiry or investigation compulsory (paras 6–8). The Court remitted the matter for fresh orders after compliance (para 9). Why it matters now: s.225(1) BNSS repeats the compulsory words. On a reading, the new proviso brings the accused in before cognizance; how that sits with the complainant-only inquiry in para 6 is undecided in the judgments read for this page.

Mehmood Ul Rehman v. Khazir Mohammad Tunda, [2015] 4 S.C.R. 841, decided 31 March 2015. Kurian Joseph J. (with Adarsh Kumar Goel J.) held that where a complaint "on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance… The complaint is simply to be rejected" (para 22). No speaking order is needed at the s.190/s.204 stage, but "the Magistrate is not to act as a post office" and the order must show that the allegations, read with the statements on oath, make the accused answerable (para 23). Finding no such indication, the Court set aside the process order and remitted the matter (para 24). Why it matters now: the statements weighed are those recorded under s.223(1); process now issues under s.227.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". In Kushal Kumar Agarwal (para 5) the Supreme Court applied s.223 because the complaint was filed after 1 July 2024. Whether a complaint filed before that date, on which cognizance had not been taken, is a pending "inquiry" kept under s.200 CrPC is not answered in terms by the text; it turns on a reading of s.531(2)(a). For the full analysis see which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 200 CrPC? Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 200 of the Code of Criminal Procedure, 1973 from 1 July 2024. It keeps the duty to examine the complainant and the witnesses present on oath and to have the substance reduced to writing and signed. It adds a pre-cognizance hearing for the accused and, in sub-section (2), a filter for complaints against public servants.

Must the accused be heard before a Magistrate takes cognizance of a private complaint? Yes. The first proviso to Section 223(1) BNSS says no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. In Kushal Kumar Agarwal v. Directorate of Enforcement (2025 INSC 760, paras 6 and 10) the Supreme Court called this an embargo on the power to take cognizance and set aside a cognizance order made without it.

Does the pre-cognizance hearing apply when cognizance is taken on a police report? The proviso sits in Section 223, which applies to a Magistrate taking cognizance of an offence on complaint. Cognizance on a police report is taken under Section 210(1)(b) BNSS, which contains no equivalent proviso. On a reading of the text, the hearing requirement therefore does not extend to cognizance on a police report.

What is required before a complaint against a public servant can proceed? Under Section 223(2) BNSS a Magistrate shall not take cognizance on a complaint against a public servant for an offence alleged in the course of his official functions or duties unless the public servant is given an opportunity to make assertions about the situation that led to the incident, and a report of the facts and circumstances from his superior officer is received. Where Section 218 applies, previous sanction is a separate requirement.

Does Section 223 BNSS apply to complaints under special laws such as the PMLA? In Kushal Kumar Agarwal v. Directorate of Enforcement (2025 INSC 760, para 5) the Supreme Court held that a complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 is governed by Chapter XVI of the BNSS, so Section 223 applies to such a complaint filed after 1 July 2024. Section 210(1)(a) BNSS now expressly covers any complaint filed by a person authorised under any special law.

Which law applies to a complaint filed before 1 July 2024? Section 531(2)(a) BNSS provides that an inquiry or trial pending immediately before 1 July 2024 continues under the CrPC as if the BNSS had not come into force. Whether a complaint filed before that date but not yet taken on file is a pending inquiry is not answered in terms by the text; it turns on a reading of Section 531(2)(a). A complaint filed after that date is governed by Section 223 (Kushal Kumar Agarwal, para 5).

Related

• Complaint against a public servant: BNSS sections 175 and 218 vs CrPC 197
• Section 197 CrPC vs Section 218 BNSS: sanction for prosecution
• Police refuse to register an FIR: remedies under the BNSS and CrPC
• Section 482 CrPC vs Section 528 BNSS: inherent powers of the High Court
• Summons on WhatsApp and email: electronic service under the BNSS
• Offence before 1 July 2024: which law applies
• Section 319 CrPC vs Section 358 BNSS — Summoning Additional Accused
• Section 190 CrPC vs Section 210 BNSS — Cognizance of Offences by Magistrate
• Section 204 CrPC vs Section 227 BNSS — Issue of Process
• Sections 177–189 CrPC vs Sections 197–209 BNSS — Place of Inquiry and Trial
• Sections 251–259 CrPC vs Sections 274–282 BNSS — Trial of Summons-Cases by Magistrates

Sources

• Acts and sections read: BNSS 2023 ss.2(1)(h), 175, 210, 218, 223–227, 530, 531 (Gazette CG-DL-E-25122023-250884); CrPC 1973 ss.190, 200–204 (original India Code text).
• Judgments read (Veritect judgment corpus, full text): Kushal Kumar Agarwal v. Directorate of Enforcement (2025_5_730_734_EN.md); M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate (S_1997_5_12_29_EN.md); National Bank of Oman v. Barakara Abdul Aziz (2012_11_500_506_EN.md); Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015_4_841_859_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.