The Bharatiya Nagarik Suraksha Sanhita – 2023

(Act No. 46 of 2023)

Chapter: - XV- Condition Requisite for Initiation of Proceeding’s
Section: - 210 to 222 [Note CrPC: - XIV- 190 to 189]

Introduction
The term Cognizance has not been defined anywhere under this Sanhita

The expression ‘taking Cognizance’ has not been defined in the Sanhita. The expression is
used to indicate a point when the magistrate takes judicial notice of an offence with a view to
initiate criminal proceedings. (M.L. Sethi v. R.L. Kapur, AIR 1967 SC 528)

[Applying Judicial Mind]

In Subramanian Swamy v. Mahmohan Singh, AIR 2012 SC 1185, Supreme Court held that
cognizance is taking judicial notice by the court of law, possessing jurisdiction, on a matter
presented before it and decide whether there is any basis for initiating proceedings.

In Manhari Bhai v. Shailesh Bhai, (2012) 10 SCC 5271, held that, taking cognizance does
not mean issuance of process.

In Bholu Ram v. State of Punjab, (2008) 9 SCC 140, held that, It is a settled law that court
can take cognizance of an offence only and once the cognizance is taken the court becomes
functus officio. There can be no recall of order of cognizance.

Supreme Court in HDFC Securities Ltd. v. State of Maharashtra, (2017) 1 SCC 640 held
that the words 'may take cognizance' in Section 210(1) of BNSS cannot be equated with
'must take cognizance'. The Magistrate on receiving complaint is not bound to take
cognizance if the facts alleged in the complaint do not disclose the commission of the
cognizable offence.

Note:- (1) Taking cognizance under Section 210 of BNSS does not depend upon the
presence of accused in the court. Accused has no role to play at this stage.

(2) No Cognizance on First Information Report

 Cognizance of Offences by the Magistrate [Section 210]

How Taken Who can take?

Upon information received

Upon Upon from any person (other than a
Complaint Police Report police officer),
or upon his own knowledge,
(Suo-moto)

Magistrate of 1st Magistrate of 2nd

Class class empowered
by CJM

Chapter 16 [CTM]
Examination of Complainant
Sec 223
Sec 224
Sec 225[limited
Investigation for deciding]
Sec 226 [Dismiss]

Chapter 17 1. Summon Appear/ Brought before the

Issue of Process 2. BW court
3. NBW

Chapter 18
The Charge
Framing of Charge

Trial

Chapter 19 Chapter 20 Chapter 21 Chapter 22

Court of Session Warrant Summon Summary

- Upon Complaint magistrate order investigation by police U/s 174(2) in Non-

cognizable Cases
- Order investigation by police U/s 175(3) in cognizable Cases, in this way, complaint
becomes FIR and ends after Police report.
  Section 210
Cognizance of offences by Magistrate

Section 210(1) provides that any Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under Section 210(2), may take cognizance
of any offence-

(a) Upon receiving a complaint of facts, including any complaint filed by a person
authorised under any special law, which constitutes such offence;

2(1)(h) "complaint" means any allegation made orally or in writing to a Magistrate, with a
view to his taking action under this Sanhita, that some person, whether known or unknown,
has committed an offence, but does not include a police report.

Explanation.—A report made by a police officer in a case which discloses, after

investigation, the commission of a non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is made shall be deemed to be the
complainant;

(b) Upon a police report (submitted in any mode including electronic mode) of such facts;

(c) Upon information received from any person other than a police officer,

Or upon his own knowledge, that such offence has been committed.

Section 210(2) provides that the Chief Judicial Magistrate may empower any Magistrate of
the second class to take cognizance under Section 210(1) of such offences as are within his
competence to inquire into or try.

Irregularities in Cognizance

Section 506 - Irregularities which do not vitiate proceedings- (e)- to take cognizance of an
offence under clause (a) or clause (b) of sub-section (1) of section 210

Section 507- Irregularities which vitiate proceedings- (K)- takes cognizance of an offence
under clause (c) of sub-section (1) of section 210;

 Section 211
Transfer on application of accused.
where Magistrate the accused shall, if the accused or any The case shall be
takes cognizance of before any evidence of the accused, if transferred to such
an offence upon is taken, be informed there be more than other Magistrate as
information received that he is entitled to one, objects to may be specified by
from any person have the case further proceedings the Chief Judicial
(other than police inquired into or tried before the Magistrate Magistrate in this
officer) or where by another taking cognizance behalf.
Magistrate takes Magistrate
cognizance suo-motu,
  Section 212
Making over of cases to Magistrates.

Makeover/ Madeover: - Downward

Commit: - Upwards

Section 212(1) CJM – (after taking Cognizance) Make over the case for inquiry or trail - to
any competent Magistrate subordinate to him.

Section 212(2) – CJM empower any JM 1ST by general or special order, that (after taking
Cognizance) Make over the case for inquiry or trail - to any competent Magistrate
subordinate to him.

Read with Section 450 of BNSS

 Section 213
Cognizance of offences by Court of Session.

General Rule:- Section 213 provides that no Court of Session shall take cognizance of any
offence as a court of original jurisdiction, unless the case has been committed to it by a
Magistrate under the Sanhita.

Exceptions to this rule:

(i) Where it has been expressly provided by the Sanhita itself [R/w-Section 222(2)]
(ii) Where it has been provided by any other law for the time being in force.

 Section 214
Additional Sessions Judges to try cases made over to them

Section 214 provides that an Additional Session Judge shall try such cases which are:

1. Made over to him by the Sessions Judge of the division, or

2. Directed to try by the High Court by special order.

No Court Shall Take Cognizance (Limitation)

Chapter 38
Section 514 :- Bar of taking Cognizance after
lapse of period of Limitation
1.) Offence punishment is Fine- 6 month
2.) Offence punishment upto 1 year – 1
year
Section 215-222
3.) Offence punishment more than 1 year
but upto 3 years – 3 years
4.) Offence punishment more than 3 years
– No time
  Section 215
Prosecution for contempt of lawful authority of public servants, for offences
against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance—

(a) Of any offence punishable under sections 206 to 223 (except section 209) of the
Bharatiya Nyaya Sanhita, 2023 [Contempt of lawful authority of Public Servant]

 Abetment
 Attempt
 Criminal conspiracy

Except on the complaint in writing of

- the public servant concerned or

- some other public servant to whom he is administratively subordinate or
- some other public servant who is authorised by the concerned public servant so to do

(b) Any offence punishable under any of the following sections of the Bharatiya Nyaya
Sanhita, 2023, namely, sections 229 to 233, 236, 237, 242 to 248 and 267, (when such
offence is alleged to have been committed in, or in relation to, any proceeding in any Court)
{ Public Justice/ false evidence}

Or any offence under section 336(1), 340(2) or 342 of the said Sanhita, (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};

 criminal conspiracy
 attempt
 abetment

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

The term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central or State Act if declared by that Act to be a Court for the
purposes of this section.

(2) Where a complaint has been made by a public servant or by some other public servant
who has been authorised to do so by him under clause (a) of sub-section (1), any authority to
which he is administratively subordinate or who has authorised such public servant, may,
order the withdrawal of the complaint and send a copy of such order to the Court; and upon
its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has
been concluded.

 Section 216
Procedure for witnesses in case of threatening, etc.

A witness or any other person may file a complaint in relation to an offence under section
232 of the Bharatiya Nyaya Sanhita, 2023 i.e. in case of threatening the witness

(Punishment upto 7 years / Fine Both )

 Section 217
Prosecution for offences against State and for criminal conspiracy to commit
such offence.

(1) No Court shall take cognizance—

 Any offence under Chapter VII or under Section 196, Section 299 or Section 353(1) of
the Bharatiya Nyaya Sanhita, 2023 or its criminal conspiracy or abetment under
Section 47 of Bharatiya Nyaya Sanhita without the previous sanction of the Central
Government or the State Government. (offence against the state/ Religions)

 Any offence under Section 197 or Section 353(2) and 353(3) of the Bharatiya Nyaya
Sanhita, 2023 or its criminal conspiracy with previous sanctions of the Central
Government or State Government or District Magistrate.(National Integration/ Public
Mischief)

 No court shall take cognizance of the offence of criminal conspiracy under Section
61(2) of Bharatiya Nyaya Sanhita (other than criminal conspiracy to commit an
offence punishable with death, life imprisonment or rigorous imprisonment of two
years or more) unless the written consent of the State Government or the District
Magistrate to initiation the proceedings.

Proviso – for the cognizance of any criminal conspiracy under section 215 of the Sanhita, no
such consent shall be necessary.

Note:- State government/ Central government / District Magistrate- Before sanction/consent

– order a preliminary investigation by police officer not below the rank of inspector.
  Section 218
Prosecution of judges and Public Servants

Section 218 provides that any person who is or was a Judge or Magistrate or a public servant
not removable from his office without the sanction of the Government, is accused of an
offence alleged to have been committed by him while acting or purporting to act in discharge
of his official duty, no court can take cognizance of such offence except with the previous
sanction of the Central Government or the State Government or otherwise provided in the
Lokpal and Lokayuktas Act, 2013.

Proviso I :- Sate Emergency- State government substituted by Central Government

New:- Provided II further that such Government shall take a decision within a period of 120
days from the date of the receipt of the request for sanction and in case it fails to do so, the
sanction shall be deemed to have been accorded by such Government:

Provided III also that no sanction shall be required in case of a public servant accused of any
offence alleged to have been committed under section 64, section 65, section 66, section 68,
section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78,
section 79, section 143, section 199 or section 200 of the Bharatiya Nyaya Sanhita, 2023.

(2) 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.

In Devendra Prasad Singh v. State of Bihar (2019), Supreme Court held that in order to
attract rigor Section 218 of BNSS, the offence alleged against a Government Officer must
have some nexus with the discharge of his official duties as Government Officer.

In Indra Devi v. State of Rajasthan, (2021) 8 SCC 768 Supreme Court held that sanction
from competent authorities under Section 218 of BNSS is required to prosecute public
servants if the alleged act committed is directly concerned with the official duty.

In S.K. Miglani v. State of NCT of Delhi, (2019) 6 SCC 111, Supreme Court held that a
public servant working in a nationalized bank cannot claim benefit of sanction under Section
218 of BNSS

 Section 219
Prosecution for Offences against Marriage.

No court shall take cognizance of offence punishable under Sections 81 to 84 of Bharatiya

Nyaya Sanhita except upon a complaint made by some person aggrieved by the offence.

(Dowry/ Bigamy etc)

Proviso
(1) Where aggrieved person is a child or is of unsound mind or is having intellectual
disability requiring higher sup-port needs or due to sickness or infirmity is unable to make
complaint, or

(b) Is a woman who according to local customs & manners ought not to be compelled to
appear in public.

(c) With the permission of the court, some other person may make a complaint on his or her
behalf.

(II) Where the aggrieved person is husband and is serving in Armed Forces, some other
person on his behalf may make a complaint.

(III) Where wife is aggrieved by an offence under Section 82 (Bigamy) of the Bharatiya
Nyaya Sanhita, 2023, the complaint may be made on her behalf by her:

(a) Father, mother, brother, sister, son or daughter, or

(b) Father's or mother's brother or sister or,

(c) With the leave of the court, by any other person related to her blood, marriage or
adoption.

Section 219(3) When in any case falling under clause (a) of the proviso to sub-section (1),
the complaint is sought to be made on behalf of a child or of a person of unsound mind by a
person who has not been appointed or declared by a competent authority to be the guardian
of the child, or of the person of unsound mind, and the Court is satisfied that there is a
guardian so appointed or declared, the Court shall, before granting the application for leave,
cause notice to be given to such guardian and give him a reasonable opportunity of being
heard.

Section 219(4) The authorisation referred to in clause (b) of the proviso to sub-section (1),
shall be in writing, shall be signed or otherwise attested by the husband, shall contain a
statement to the effect that he has been informed of the allegations upon which the complaint
is to be founded, shall be countersigned by his Commanding Officer, and shall be
accompanied by a certificate signed by that Officer to the effect that leave of absence for the
purpose of making a complaint in person cannot for the time being be granted to the
husband.

Section 219(5) Any document purporting to be such an authorisation and complying with the
provisions of sub-section (4), and any document purporting to be a certificate required by
that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be
received in evidence.
Section 219(6) No Court shall take cognizance of an offence under section 64 of the BNS,
2023, where such offence consists of sexual intercourse by a man with his own wife, the wife
being under 18 years , if more than 1 year has elapsed from the date of the commission of the
offence.

 Section 220
Prosecution of Offences U/S 85 (498A) of BNS

No Court shall take cognizance of an offence punishable under section 85 of the Bharatiya
Nyaya Sanhita, 2023

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.

 Section 221
Cognizance of Offence

No Court shall take cognizance of an offence punishable under section 67 of the BNS, 2023
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. (Sexual Intercourse during Judicial Separation)

 Section 222
Prosecution for defamation
Section 222(1) provides that no court shall take cognizance of an offence under Section 356
of Bharatiya Nyaya Sanhita except upon a complaint made by aggrieved person.

Proviso :- Where the aggrieved person is a child or is of unsound mind or is having

intellectual disability or due to sickness or infirmity is unable to make complaint or a woman
who according to local custom & manners ought not to be compelled to appear in public
then, any other person with the leave of the court, may make a complaint on behalf of such
aggrieved person.

Section 222(2) provides that Notwithstanding anything contained in this Sanhita, when any
offence under Section 356 of Bharatiya Nyaya Sanhna alleged to have been committed
against a person, who at the time of such commission is

(i) President or Vice President of India

(ii) Governor of a State, Administrator of a Union Territory
(iii) Minister of Union of State or Union Territory or
(iv) Public Servant of the Union or Stare in respect of his conduct in the discharge of
his public functions
In that case Court of Session may take cognizance of such offence without the case being
committed to it, upon a written complaint by the Public Prosecutor

Section 222(3) Every complaint referred to in sub-section (2) 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.

Section 222(4) The Public Prosecutor shall make such complaint with the previous sanction
of the State Governmeni or the Central Government.

Section 222(5) The Court of Session cannot take cognizance of an offence under Section
222(2) where the complaint is not made within 6 month from the date of commission of the
offence

Section 222(6) Nothing in this section shall affect the right of the person against whom the
offence is alleged to have been committed, to make a complaint in respect of that offence
before a Magistrate having jurisdiction or the power of such Magistrate to take cognizance of
the offence upon such complaint

Read with Section 260 BNSS

Section 260 lays down the procedure for trail of section 222(2) before the Court of Session.
This section also states that id the said allegation is found False, the accused shall be
discharged and acquitted and the persons who had alleged the said defamation shall be liable
to pay compensation up to Rs 5000 to the accused.

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