Private criminal complaints and Magistrate-ordered investigation under the BNSS

Section 173 of the BNSS (formerly Section 154 of the CrPC) requires the officer in charge of a police station to record information about a cognizable offence. In Lalita Kumari the Constitution Bench held that registration is mandatory when the information discloses a cognizable offence.

If the station officer refuses, Section 173(4) of the BNSS allows the aggrieved person to send the substance of the information, in writing and by post, to the Superintendent of Police. If the Superintendent is satisfied that a cognizable offence is disclosed, he must investigate the case himself or direct a subordinate officer to do so. The sub-section ends by saying that, failing this, the aggrieved person may apply to the Magistrate.

For offences punishable with three years or more but less than seven years, Section 173(3) lets the station officer, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, hold a preliminary enquiry before proceeding.

Section 175(3) of the BNSS (formerly Section 156(3) of the CrPC) lets a Magistrate who can take cognizance under Section 210 order the police to investigate. In Priyanka Srivastava (2015) the Supreme Court had already required that an application under Section 156(3) be supported by an affidavit sworn by the applicant, and that the applicant first approach the police under Sections 154(1) and 154(3).

In Om Prakash Ambadkar (2025) the Court set out how Section 175(3) goes further. Before ordering investigation, the Magistrate must consider the application made to the Superintendent of Police under Section 173(4), supported by an affidavit; may conduct such enquiry as he thinks necessary; and must consider the submissions of the police officer.

Where the allegation is against a public servant for acts in the course of official duty, Section 175(4) requires a report from his superior officer and his own account of the incident. In XXX v. State of Kerala (2026) the Court held that sub-section (4) does not cover oral complaints, that its "may" leaves the Magistrate a discretion, and that an untenable application under sub-section (3) can still be rejected with valid reasons.

A Magistrate may take cognizance on a complaint under Section 210 of the BNSS. A complaint case begins under Section 223 of the BNSS (formerly Section 200 of the CrPC). The Magistrate examines the complainant and any witnesses present on oath, reduces the substance to writing, and has it signed by them and by himself.

The examination is not needed when a public servant acting officially, or a Court, has complained in writing, or when the case is made over to another Magistrate under Section 212. Section 223(2) adds that cognizance of a complaint against a public servant for an act in the discharge of official duties needs an opportunity for the public servant to explain the situation and a report from his superior officer.

If he finds no sufficient ground for proceeding, he dismisses the complaint with brief reasons under Section 226 of the BNSS (formerly Section 203 of the CrPC).

The first proviso to Section 223(1) is new. It says that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

In Parvinder Singh v. Directorate of Enforcement (2026) the Supreme Court held that this proviso is substantive, that the word "shall" in it is mandatory, and that cognizance taken without complying with it is void ab initio. Under Section 531(2)(a) of the BNSS, proceedings pending on 1 July 2024 continue under the CrPC; the Court held that the right to be heard benefits an accused against whom no such proceeding had begun.

For the accused, this hearing is the first chance to show that the complaint discloses no offence. For the complainant, the complaint and sworn statements must withstand the other side's scrutiny before any summons issues.

If the Magistrate finds sufficient ground for proceeding, Section 227 of the BNSS (formerly Section 204 of the CrPC) governs issue of process. In a summons-case he issues a summons; in a warrant-case he may issue a warrant or a summons. Under Section 204(2) of the CrPC, carried into Section 227(2), no summons or warrant issues until a list of prosecution witnesses has been filed. A new proviso allows summons or warrant to be issued through electronic means.

In Delhi Race Club (2024) the Supreme Court said that a Magistrate is expected to be more careful when he takes cognizance on a private complaint and orders issue of process than when he only orders police investigation.