Chapter 15: Bharatiya Nagarik Suraksha Sanhita, 2023

CHAPTER XV: CONDITIONS REQUISITE FOR INITIATION OF PROCEEDINGS

This chapter explains the “ignition” of the criminal court system. “Taking cognizance” is the moment a Magistrate formally applies their mind to a case and decides to start the judicial process.

Section 210: Cognizance of offences by Magistrate

• Sub-section (1):
  • Simple English: This is the gateway to the court system. A Magistrate of the First Class (or a Second Class Magistrate specially empowered) can “take cognizance” (officially start a case) in one of three ways:
  • (a) Upon receiving a complaint: This is when a private citizen or an authorized person files a “complaint” (a petition) directly with the Magistrate.
    • Real-World Example: You file a private complaint for defamation (a non-cognizable offence) directly against your neighbor in the Magistrate’s court. The Magistrate “takes cognizance” on your complaint.
  • (b) Upon a police report: This is the most common way. The police investigate a crime (usually from an FIR) and file a chargesheet (a “police report”). The Magistrate reads the report and “takes cognizance.”
    • Real-World Example: The police file a chargesheet for a theft. The Magistrate reviews it and, satisfied that there is a case, takes cognizance and issues a summons for the accused.
  • (c) Upon information received from any person other than a police officer, or upon his own knowledge: This is a special power. The Magistrate can start a case based on information they receive from someone (who isn’t police) or based on something they personally know.
    • Real-World Example: A person throws a book at a Magistrate during a court proceeding. The Magistrate can immediately “take cognizance” of the offence of “assault” based on his own knowledge, without needing any complaint or police report.
• Sub-section (2):
  • Simple English: The Chief Judicial Magistrate (CJM) can give a Magistrate of the Second Class (a more junior judge) the power to take cognizance under sub-section (1).
  • Real-World Example: The CJM issues an order empowering the junior-most Magistrate to handle (take cognizance of) all petty traffic-related offences in the district.

Section 211: Transfer on application of accused

• Simple English: This section is a right given to an accused person in a very specific situation. If a Magistrate starts a case on their own (under Section 210(1)(c)), without a police report or a private complaint, the accused must be told before any evidence is taken that they are entitled to have the case tried by a different Magistrate.
• If the accused (or any one of them, if there are multiple) objects to being tried by the Magistrate who started the case, the case must be transferred to another Magistrate.
• Real-World Example: A Magistrate, during a public event, personally witnesses someone committing an offence. The Magistrate goes to court and “takes cognizance” based on his own knowledge. When the accused person is summoned, the Magistrate must inform them, “I am the one who initiated this case. You have the right to be tried by another judge.” If the accused says, “Yes, I object,” the case must be sent to a different Magistrate for a fair trial.

Section 212: Making over of cases to Magistrates

• Sub-section (1):
  • Simple English: A Chief Judicial Magistrate (CJM), who is the administrative head of all Magistrates in a district, can “make over” (assign) a case that he has taken cognizance of to any other competent Magistrate under him.
  • Real-World Example: The police file 20 new chargesheets on a single day. The CJM “takes cognizance” of all of them and then distributes them: “Theft case A goes to Magistrate-1, assault case B goes to Magistrate-2…” This is how the workload is managed.
• Sub-section (2):
  • Simple English: Any Magistrate of the first class who has been empowered by the CJM can also assign a case (that he took cognizance of) to another competent Magistrate, as per the CJM’s directions.
  • Real-World Example: The CJM might issue an order allowing the senior-most Magistrate in a sub-division to distribute cases among the other judges in that sub-division.

Section 213: Cognizance of offences by Court of Session

• Simple English: This is a fundamental rule of procedure. A Court of Session (the highest trial court in a district, which tries serious cases like murder) cannot take cognizance of a case directly.
• The only way a Sessions Court can start a trial is if the case is first brought before a Magistrate, who then reviews the documents and “commits” (formally sends) the case up to the Sessions Court for trial.
• Exception: This rule doesn’t apply if the BNSS (or another law) specifically says a Sessions Court can take direct cognizance (e.g., in cases of defamation of high-ranking public officials, as seen in Section 222).
• Real-World Example: Police file a chargesheet for a murder. They must file it with a Magistrate. The Magistrate will review the papers (under Section 232) and then “commit the case” to the Sessions Court. The Sessions Court cannot accept the chargesheet directly from the police.

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

• Simple English: An Additional Sessions Judge (ASJ) is a judge with the same powers as the main Sessions Judge. An ASJ tries the cases that are assigned (“made over”) to them by the main Sessions Judge of that district or by a special order from the High Court.
• Real-World Example: The Sessions Judge of a district receives 5 new “committed” murder cases from the Magistrates. He keeps one for his own court and assigns (“makes over”) one case to each of his four ASJs.

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

This is a key “sanction” section. It creates a legal barrier, stopping private citizens from starting cases for certain offences that happen against public servants or in a court.

• Sub-section (1)(a):
  • Simple English: For offences involving disobeying a public servant (like refusing to answer questions, or not attending when summoned, covered in BNS Sections 206-223), a court cannot take cognizance.
  • The Only Way: The court can only start a case if it receives a written complaint from the public servant who was disobeyed (or their administrative boss, or another officer they authorize).
  • Real-World Example: A health inspector issues a legal notice to a restaurant owner, who ignores it. A rival restaurant owner cannot file a criminal case for this. Only the health inspector (or his boss, the Chief Medical Officer) can file a written complaint with the Magistrate to start the prosecution.
• Sub-section (1)(b):
  • Simple English: This deals with offences that happen in or in relation to a court proceeding. For crimes like:
    1. Perjury (lying under oath, BNS 229-233)
    2. Using a forged document as evidence in court (BNS 336)
    3. Criminal conspiracy or abetment of the above.
  • The Only Way: A court cannot take cognizance of these offences unless it receives a written complaint from that specific court where the offence happened (or a higher court that it is subordinate to).
  • Real-World Example: In a trial, a witness, “A”, clearly lies on the stand. The opposing party, “B”, cannot go to the police station and file an FIR against “A” for perjury. Only the court (Judge “C”) where the lie was told can, after its own inquiry, file a formal written complaint with a Magistrate to start the perjury case against “A”.

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

• Simple English: This is a new provision and an important exception to the rule in Section 215. It clarifies that any witness or any other person (not just the court) can file a complaint for the offence of “threatening a witness” (which is an offence under Section 232 of the BNS).
• Real-World Example: A witness in a murder case gets a threatening phone call from the accused’s relative. The witness does not have to wait for the trial judge to file a complaint. They can directly go to the police and file an FIR (or file a private complaint with a Magistrate) for the offence of being threatened.

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

This is another “sanction” section, this time for grave offences against the country.

• Sub-section (1):
  • Simple English: For the most serious offences “against the State” (e.g., waging war, sedition, or any act endangering the sovereignty and integrity of India, BNS Chapter VII), a court cannot take cognizance.
  • The Only Way: The court can only start the case after receiving “previous sanction” (a formal permission slip) from either the Central Government or the State Government.
  • Real-World Example: The police arrest members of a group for planning to wage war (BNS 147) and file a chargesheet. The court cannot start the trial. The prosecution must first send the entire case file to the Ministry of Home Affairs (Central Government) and get a formal “Sanction Order” signed by an authorized officer. Only with that order can the court proceed.
• Sub-section (2):
  • Simple English: For slightly different offences, like “promoting enmity between different groups” (BNS 197), the sanction (permission) can be obtained from the Central Government, the State Government, or the District Magistrate (DM).
  • Real-World Example: A person is charged under BNS 197 for giving a hate speech. The police can get the sanction order from the local DM, which is much faster than sending the file to the State Government capital.
• Sub-section (3):
  • Simple English: This is for “criminal conspiracy” to commit minor offences (those not punishable with death, life imprisonment, or 2+ years). A court cannot start a case for such a conspiracy unless the State Government or the District Magistrate gives written consent.
  • Proviso: This doesn’t apply to conspiracies related to court-offences (Sec 215), which have their own rules.
  • Real-World Example: Two people conspire to commit simple trespass (a minor offence). A court can’t try them for the conspiracy itself unless the DM gives consent.
• Sub-section (4):
  • Simple English: Before giving sanction, the Government or the DM has the power to order a preliminary investigation by a senior police officer (Inspector rank or higher) to double-check the facts.
  • Real-World Example: The DM receives a police file requesting sanction to prosecute someone for a hate speech (BNS 197). The DM is unsure if the speech is truly that bad and orders a senior Inspector to “conduct a preliminary investigation and submit a report on the authenticity and impact of the video.”

Section 218: Prosecution of Judges and public servants

This is one of the most well-known and debated provisions (formerly Section 197 of the CrPC). It provides a legal shield to public servants.

• Sub-section (1):
  • Simple English: If a person who is or was a Judge, Magistrate, or a public servant (who can only be removed by the Government) is accused of an offence, a court cannot take cognizance IF the offence is alleged to have been committed while that person was acting (or “purporting to act”) in the discharge of their official duty.
  • The Barrier: The court must first get “previous sanction” (formal permission) from the government.
  • (a) Central Employee: If the person works for the Central Government (like an IAS officer, Income Tax official, CBI officer), the sanction must come from the Central Government.
  • (b) State Employee: If the person works for a State Government (like a state police officer, a Tehsildar, a government doctor), the sanction must come from the State Government.
  • Real-World Example: A police officer, during a chaotic lathi-charge to disperse an illegal mob, injures a protestor. The protestor files a criminal case against the officer for “causing hurt.” Since the officer was acting in his official duty (even if he used excessive force), the court cannot start the trial unless the State Government provides a sanction order. This is to protect public servants from frivolous or harassing lawsuits that would stop them from doing their jobs.
• Sub-section (1), First Proviso:
  • Simple English: If a state government employee (like a state police officer) committed the offence while the state was under President’s Rule, the sanction must come from the Central Government (which was in charge at the time).
• Sub-section (1), Second Proviso:
  • Simple English: This is a major new rule. The Government must make a decision (yes or no) on the sanction request within 120 days of receiving all the required documents.
  • What if they don’t? If the government fails to decide within 120 days, the sanction will be “deemed to have been accorded” (it is considered automatically approved), and the court can start the trial.
  • Real-World Example: The police want to prosecute a public servant and send the complete file for sanction on January 1st. The government does nothing. On May 2nd (the 121st day), the sanction is automatically granted. The court can now proceed.
• Sub-section (1), Third Proviso:
  • Simple English: This is another major new exception. No sanction is required at all if a public servant is accused of an offence involving sexual violence (like rape, assault on a woman, sexual harassment – BNS 64-71, 74-79) or human trafficking (BNS 143, 199, 200).
  • Real-World Example: A senior government official is accused of sexual harassment (BNS 75) by an employee. The police can file a chargesheet, and the court can immediately start the trial. The court does not need to wait for government permission.
• Sub-section (2):
  • Simple English: The same rule applies to members of the Armed Forces of the Union. No court can take cognizance of an offence committed while on official duty without previous sanction from the Central Government.
• Sub-section (3):
  • Simple English: The State Government can apply the same “sanction” rule (from sub-section 2) to its own state forces that are charged with maintaining public order (like a state’s “Armed Police”).
• Sub-section (4):
  • Simple English: A technical point: If those state forces commit an offence during President’s Rule, the sanction still comes from the Central Government.
• Sub-section (5):
  • Simple English: When the government gives sanction, it can also specify who will be the prosecutor and which court will hold the trial.

Section 219: Prosecution for offences against marriage

• Sub-section (1):
  • Simple English: For offences related to marriage (BNS Sections 81-84, which includes enticing a married woman and bigamy), a court cannot take cognizance unless it receives a complaint from an “aggrieved person.” A stranger or a police officer cannot start the case on their own.
  • Real-World Example: A man (“A”) marries a second woman while his first wife (“B”) is still alive. The man’s neighbor (“C”) cannot file a court case for bigamy. Only the “aggrieved person” (the first wife, “B”) can file the complaint.
• Sub-section (1), Provisos (a), (b), (c):
  • Simple English: These are exceptions for who can file the complaint if the aggrieved person cannot:
  • (a) If the aggrieved person is a child, of unsound mind, sick, or is a “pardanashin” woman (who by custom cannot appear in public), someone else can file with the court’s permission.
  • (b) If the aggrieved person is a husband serving in the Armed Forces, he can give a special written authorization for someone else to file on his behalf.
  • (c) For bigamy (BNS 82), if the aggrieved person is the wife, her father, mother, brother, sister, son, or daughter (or other close relatives) can file the complaint on her behalf.
• Sub-section (2):
  • Simple English: For the offence of adultery (BNS 84, enticing a married woman), only the husband of the woman is legally considered the “aggrieved person.”
• Sub-section (3):
  • Simple English: If someone tries to file a complaint on behalf of a child or person of unsound mind (under Proviso (a)), and that person has a legal guardian, the court must first give notice to the guardian and hear what they have to say.
• Sub-section (4):
  • Simple English: This details the specific requirements for the written authorization from an Armed Forces husband (under Proviso (b)). It must be in writing, signed by him, and countersigned by his Commanding Officer.
• Sub-section (5):
  • Simple English: A court will automatically assume such an authorization document from the Armed Forces is genuine unless proven otherwise.
• Sub-section (6):
  • Simple English: This is a statute of limitations. A court cannot take cognizance of the offence of sexual intercourse by a man with his own wife (where the wife is under 18) if more than one year has passed since the act.

Section 220: Prosecution of offences under section 85 of Bharatiya Nyaya Sanhita, 2023

• Simple English: This is for the offence of “Cruelty” by a husband or his relatives (the main “dowry harassment” law, BNS 85).
• A court cannot take cognizance of this offence unless the case is started in one of two ways:
  1. A police report: This means the victim (or someone on her behalf) filed an FIR, and the police investigated and filed a chargesheet.
  2. A complaint: The aggrieved woman or her father, mother, brother, sister, or other close relative (by blood, marriage, or adoption) files a private complaint directly with the Magistrate.
• Real-World Example: A woman is being harassed for dowry. She can either go to the police station and file an FIR (which leads to a police report) or her father can directly hire a lawyer and file a private complaint with the Magistrate.

Section 221: Cognizance of offence

• Simple English: This section deals with the specific offence of a husband having sexual intercourse with his wife while they are legally separated (an offence under BNS Section 67).
• The Rule: A court cannot take cognizance of this offence unless it is satisfied, prima facie (at first glance), that the facts constitute the offence and the complaint has been filed by the wife herself.
• Real-World Example: A couple is legally separated by a court order. If the husband forces himself on the wife, a relative or friend cannot file a criminal case. The court can only act if the wife herself is the complainant.

Section 222: Prosecution for defamation

This section sets special rules for starting a defamation case (an offence under BNS Section 356).

• Sub-section (1):
  • Simple English: A court cannot take cognizance of defamation except upon a complaint made by an “aggrieved person.” The police cannot file an FIR for defamation (it’s non-cognizable), and a random person can’t file a case on someone else’s behalf.
  • Real-World Example: A magazine publishes a defamatory article about a businessman. His business rival cannot file a case. Only the businessman (the “aggrieved person”) can file a private complaint with a Magistrate.
• Sub-section (1), Proviso:
  • Simple English: This provides exceptions for when the “aggrieved person” cannot file the complaint themselves.
  • If the person defamed is:
    • A minor (under 18),
    • A person of unsound mind or with an intellectual disability,
    • Sick or infirm and unable to attend court, or
    • A woman who, by local custom (“pardanashin”), cannot appear in public,
  • …then some other person (like a guardian or relative) can file the complaint, but they must get the court’s permission (leave) first.
  • Real-World Example: A blog post defames a 16-year-old. His father can file a complaint on his behalf after getting the court’s approval.
• Sub-section (2):
  • Simple English: This outlines a special, high-level procedure for when high-ranking public officials (like the President, Vice-President, Governor, or a Minister) are defamed in respect of their official duties.
  • The Special Rule: The case does not start in a Magistrate’s court. It can be directly filed in the Court of Session by the Public Prosecutor (the government’s lawyer).
  • Real-World Example: A newspaper publishes an article falsely claiming a State’s Finance Minister embezzled public funds (an act related to his official duty). The Public Prosecutor can file a case for defamation directly in the Sessions Court, bypassing the Magistrate court.
• Sub-section (3):
  • Simple English: The complaint filed by the Public Prosecutor (in the example above) must be a detailed written document explaining the facts and the nature of the offence.
• Sub-section (4):
  • Simple English: The Public Prosecutor cannot file this special case unless they first get “previous sanction” (formal permission) from the government.
  • (a) From the State Government, if the official is a Governor or a State Minister/servant.
  • (b) From the Central Government, in all other cases (President, VP, Union Minister).
  • Real-World Example: Before filing the case for the Finance Minister, the Public Prosecutor must get a formal sanction order from the State Government (via its Home Department).
• Sub-section (5):
  • Simple English: This special case must be filed within six months from the date of the defamation.
• Sub-section (6):
  • Simple English: This special procedure doesn’t take away the official’s normal rights. The official (e.g., the Minister) can still choose to file a normal private complaint as a regular citizen in a Magistrate’s court if they don’t want to use the special government procedure.