CHAPTER XV

COMPLAINTS TO MAGISTRATES
200. Examination of complainant.—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:
Provided that, when the complaint is made in writing, the Magistrate
need not examine thecomplainant 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 192:
Provided further that if the Magistrate makes over the case to another
Magistrate under section 192 after examining the complainant and the
witnesses, the latter Magistrate need not re-examine them.
CHAPTER XVI
COMPLAINTS TO MAGISTRATES
Examination of complainant.
223.(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.
201. Procedure by Magistrate not competent to take cognizance of the
case.—If the complaint is made to a Magistrate who is not competent to
take cognizance of the offence, he shall,—
(a) if the complaint is in writing, return it for presentation to the proper
Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the
proper Court.
Procedure by Magistrate not competent to take cognizance of case.
224. If the complaint is made to a Magistrate who is not competent to
take cognizance of the offence, he shall,—
(a) if the complaint is in writing, return it for presentation to the proper
Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the
proper Court made to a Magistrate who is not competent to take
cognizance of the offence, he shall,—
 (a) if the complaint is in writing, return it for presentation to the proper
Court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to the
proper Court.
202. Postponement of issue of process.—(1) Any Magistrate, on receipt
of a complaint of an offence of which he is authorised to take cognizance
or which has been made over to him under section 192, may, if he thinks
fit, 1[and shall, in a case where the accused is residing at a place beyond
the area in which he exercises his jurisdiction,] postpone the issue of
process against the accused, and either inquire into the case himself or
direct an investigation to be made by a police officer or by such other
person as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,—
(a) where it appears to the Magistrate that the offence complained of
is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses
present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks
fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not
being a police officer, he shall have for that investigation all the powers
conferred by this Code on an officer in charge of a police station except the
power to arrest without warrant.

Postponement of issue of process.

 225.(1) Any Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has been made over to
him under section 212, may, if he thinks fit, and shall, in a case where the
accused is residing at a place beyond the area in which he exercises his
jurisdiction, postpone the issue of process against the accused, and either
inquire into the case himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit, for the purpose of
deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,—
(a) where it appears to the Magistrate that the offence complained of is
triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the
complainant and the witnesses present (if any) have been examined on
oath under section 223.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit,
take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained
of is triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being
a police officer, he shall have for that investigation all the powers
conferred by this Sanhita on an officer in charge of a police station except
the power to arrest without warrant.
203. Dismissal of complaint.—If, after considering the statements on
oath (if any) of the complainant and of the witnesses and the result of the
inquiry or investigation (if any) under section 202, the Magistrate is of
opinion that there is no sufficient ground for proceeding, he shall dismiss
the complaint, and in every such case he shall briefly record his reasons for
so doing.
Dismissal of complaint.
226. If, after considering the statements on oath (if any) of the complainant
and of the witnesses and the result of the inquiry or investigation (if any)
under section 225, the Magistrate is of opinion that there is no sufficient
ground for proceeding, he shall dismiss the complaint, and in every such
case he shall briefly record his reasons for so doing.
204. Issue of process.—(1) If in the opinion of a Magistrate taking
cognizance of an offence there is sufficient ground for proceeding, and the
case appears to be—
(a) a summons-case, he shall issue his summons for the attendance of
the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a
summons, for causing the accused to be brought or to appear at a certain
time before such Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under
sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every
summons or warrant issued under sub-section (1) shall be accompanied by
a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other
fees are payable, no process shall be issued until the fees are paid and, if
such fees are not paid within a reasonable time, the Magistrate may
dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of
section 87.
Issue of process.
227. (1) If in the opinion of a Magistrate taking cognizance of an offence
there is sufficient ground for proceeding, and the case appears to be—
(a) a summons-case, he shall issue summons to the accused for his
attendance; or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction himself) some other
Magistrate having jurisdiction:
Provided that summons or warrants may also be issued through
electronic means.
(2) No summons or warrant shall be issued against the accused under
sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every
summons or warrant issued under sub-section (1) shall be accompanied by
a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other
fees are payable, no process shall be issued until the fees are paid and, if
such fees are not paid within a reasonable time, the Magistrate may
dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of
section 90.
****
Discussion on the subject;
Section 190(1)(a) of Cr.P.C. deals with the taking of cognizance of an
offence by the Magistrate upon receipt of the complainant of facts which
constitutes such offences. Section 210 of BNSS is the equivalent provision
and there is an addition as ‘Including an Complainant’ filed by a person
authorized under any special law’ is included.
Section 2(d) of Cr.P.C defines the complainant as ‘any allegation
made orally or in writing to a Magistrate, with a view to his taking action
under the Code, that some persons, whether known or unknown, has
committed an offences, but does not include a police report. Section 2(1)
(h) of BNSS is the equivalent provision.
The explanation added there to reads that ‘A report made by a police
officer in a case of which discloses after investigation, the commission of a
non cognizance offence shall be deemed to be a complaint: and that police
officer for whom such report is made shall be deemed to be complainant.’

Section 200 of Cr.P.C. prescribes the procedures to be followed by

the Magistrate after receipt of the complainant. As per this section- A
Magistrate taking cognizance of an offence on complainant shall examine
the complaint upon oath and the witnesses present, if any, and substance of
such examination shall be reduced to writing and shall be signed by the
complainant and the witnesses and also by the Magistrate.
The proviso at (a) & (b) says that the above requirements need not to
be followed in case the complainant is in writing and it is by a public
servant acting or purporting to act in the discharge of the official duties, or
a Court has made the compliant or in a case Magistrate made over the case
for an inquiry or trial to another Magistrate under section 192: provided
the Magistrate as made over case to another Magistrate under section 192,
after examining the complainant and witnesses, the Magistrate need not re-
examine them.
Section 223 of the BNSS, is the equivalent provision and wherein
‘While’ is added after the word ‘taking’. A provision is added that reads as
‘No cognizance of offences shall be taken by the Magistrate without giving
accused an opportunity being heard’. There are no changes in other two
provisions i.e., in (a) and (b). After this a provision as (2) is added and as
per this provision: A Magistrate shall not take cognizance on a
complainant against the 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 officers superior to such public servant is received.
Section 201/224 deals with the sitatuation where Magistrate before
whom the complaint filed is not competent to take the cognizance of the
case. If the complaint is made to a Magistrate who is not competent to take
cognizance of the complaint he shall return the written complaint for its
presentation before a proper court and if the complaint is not in writing,
direct the complainant to move before the proper court.
Section 202/225 contemplates the situation where the Magistrate
requires to postpone the issue of process. Section 202 empowers the
Magistrate to postpone the issue of process and either inquire into the case
himself or direct an investigation to be made by a police officer or such
other person as he may think fit for the purpose of deciding whether or not
there is sufficient ground for proceeding. Hon’ble Supreme Court in
Shivjee Singh vs Nagendra Tiwary and Others 2010 Cr.L.J. 3827, held
that, the object of examining the complainant and the witnesses is to
ascertain the truth or falsehood of the complaint and determine whether
there is a prima facie case against the person who, according to the
complainant has committed an offence. If upon examination of the
complainant and/or witnesses, the Magistrate is prima facie satisfied that a
case is made out against the person accused of committing an offence then
he is required to issue process. Section 202 empowers the Magistrate to
postpone the issue of process and either inquire into the case himself or
direct an investigation to be made by a police officer or such other person
as he may think fit for the purpose of deciding whether or not there is
sufficient ground for proceeding. Under Section 203, the Magistrate can
dismiss the complaint if, after taking into consideration the statements of
the complainant and his witnesses and the result of the
inquiry/investigation, if any, done under Section 202, he is of the view that
there does not exist sufficient ground for proceeding. On the other hand,
Section 204 provides for issue of process if the Magistrate is satisfied that
there is sufficient ground for doing so.

Postponment of issuing of process is mendatery when accused was

residing outside the jurisdiction of the court. The question did arises what
is the scope of enquiry in such cases. Hon’ble Supreme Court in the case
of Abhijit Pawar v. Hemant Madhukar Nimbalkar, (2017) 3 SCC 528
 25. held that, the amended provision casts an obligation on the
Magistrate to apply his mind carefully and satisfy himself that the
allegations in the complaint, when considered along with the statements
recorded or the enquiry conducted thereon, would prima facie constitute
the offence for which the complaint is filed. This requirement is
emphasised by this Court in a recent judgment Mehmood Ul Rehman v.
Khazir Mohammad Tunda [Mehmood Ul Rehman v. Khazir Mohammad
Tunda, (2015) 12 SCC 420 : (2016) 1 SCC (Cri) 124] in the following
words : (SCC pp. 429-30, paras 20 & 22) “20. The extensive reference to
the case law would clearly show that cognizance of an offence on
complaint is taken for the purpose of issuing process to the accused. Since
it is a process of taking judicial notice of certain facts which constitute an
offence, there has to be application of mind as to whether the allegations in
the complaint, when considered along with the statements recorded or the
inquiry conducted thereon, would constitute violation of law so as to call a
person to appear before the criminal court. It is not a mechanical process
or matter of course. As held by this Court in Pepsi Foods Ltd. v. Judicial
Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 :
1998 SCC (Cri) 1400] to set in motion the process of criminal law against
a person is a serious matter.
The steps taken by the Magistrate under Section 190(1)(a) CrPC
followed by Section 204 CrPC should reflect that the Magistrate has
applied his mind to the facts and the statements and he is satisfied that
there is ground for proceeding further in the matter by asking the person
against whom the violation of law is alleged, to appear before the court.
The satisfaction on the ground for proceeding would mean that the facts
alleged in the complaint would constitute an offence, and when considered
along with the statements recorded, would, prima facie, make the accused
answerable before the court. No doubt, no formal order or a speaking order
is required to be passed at that stage. The Code of Criminal Procedure
requires speaking order to be passed under Section 203 CrPC when the
complaint is dismissed and that too the reasons need to be stated only
briefly. In other words, the Magistrate is not to act as a post office in taking
cognizance of each and every complaint filed before him and issue process
as a matter of course. There must be sufficient indication in the order
passed by the Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered along with the
statements recorded and the result of inquiry or report of investigation
under Section 202 CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against the accused under
Section 204 CrPC, by issuing process for appearance. The application of
mind is best demonstrated by disclosure of mind on the satisfaction. If
there is no such indication in a case where the Magistrate proceeds under
Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound
to invoke its inherent power in order to prevent abuse of the power of the
criminal court. To be called to appear before the criminal court as an
accused is serious matter affecting one's dignity, self-respect and image in
society. Hence, the process of criminal court shall not be made a weapon
of harassment.”
Supreme Court in the recent decision rendered in the case of Delhi
Race Club (1940) Ltd. & Ors. Vs State of Uttar Pradesh & Anr.
( CRIMINAL APPEAL NO. 3114 OF 2024) under the heading of
SCOPE OF INQUIRY UNDER SECTION 202 OF THE CRPC held
that: It is by now well settled that at the stage of issuing process it is not
the duty of the Court to find out as to whether the accused will be
ultimately convicted or acquitted. The object of consideration of the merits
of the case at this stage could only be to determine whether there are
sufficient grounds for proceeding further or not. Mere existence of some
grounds which would be material in deciding whether the accused should
be convicted or acquitted does not generally indicate that the case must
necessarily fail. On the other hand, such grounds may indicate the need for
proceeding further in order to discover the truth after a full and proper
investigation. If, however, a bare perusal of a complaint or the evidence
led in support of it shows essential ingredients of the offences alleged are
absent or thatthe dispute is only of a civil nature or that there are such
patent absurdities in evidence produced that it would be a waste of time to
proceed further, then of course, the complaint is liable to be dismissed at
that stage only. What the Magistrate has to determine at the stage of issue
of process is not the correctness or the probability or improbability of
individual items of evidence on disputable grounds, but the existence or
otherwise of a prima facie case on the assumption that what is stated can
be true unless the prosecution allegations are so fantastic that they cannot
reasonably be held to be true.

The qestion arises as to how the enquiry is to be conducted Hon’ble

Supreme Court has dealt with this aspect in the case of Vijay Dhanuka v.
Najima Mamtaj, (2014) 14 SCC 638 : (2015) 1 SCC (Cri) 479 : 2014
SCC OnLine SC 261 at page 645 14. In view of our answer to the
aforesaid question, the next question which falls for our determination is
whether the learned Magistrate before issuing summons has held the
inquiry as mandated under Section 202 of the Code. The word “inquiry”
has been defined under Section 2(g) of the Code, the same reads as
follows:
“2. (g) ‘inquiry’ means every inquiry, other than a trial, conducted
under this Code by a Magistrate or court;” It is evident from the aforesaid
provision, every inquiry other than a trial conducted by the Magistrate or
the court is an inquiry. No specific mode or manner of inquiry is provided
under Section 202 of the Code. In the inquiry envisaged under Section 202
of the Code, the witnesses are examined whereas under Section 200 of the
Code, examination of the complainant only is necessary with the option of
examining the witnesses present, if any. This exercise by the Magistrate,
for the purpose of deciding whether or not there is sufficient ground for
proceeding against the accused, is nothing but an inquiry envisaged under
Section 202 of the Code.

Section 202/225 empowers the Magistrate to direct an investigation

to be made by the police or by any such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient ground for
proceeding. The question arises is what is the scope of of that investigation
and how it is different from the investigation on reference under section
156(3) of Cr.P.C/175(4) BNSS. Hon’ble Supreme Court in the case of
Suresh Chand Jain v. State of M.P., (2001) 2 SCC 628 dealt with that
issue by holding that, 7. In our opinion, the aforesaid direction given by
the learned Single Judge of the Punjab and Haryana High Court in Suresh
Kumar v. State of Haryana [(1996) 3 Rec Cri R 137] is contrary to law and
cannot be approved. Chapter XII of the Code contains provisions relating
to “information to the police and their powers to investigate”, whereas
Chapter XV, which contains Section 202, deals with provisions relating to
the steps which a Magistrate has to adopt while and after taking
cognizance of any offence on a complaint. Provisions of the above two
chapters deal with two different facets altogether, though there could be a
common factor i.e. complaint filed by a person. Section 156, falling within
Chapter XII, deals with powers of the police officers to investigate
cognizable offences. True, Section 202 which falls under Chapter XV, also
refers to the power of a Magistrate to “direct an investigation by a police
officer”. But the investigation envisaged in Section 202 is different from
the investigation contemplated in Section 156 of the Code. Section 156 of
the Code reads thus:
“156. Police officer's power to investigate cognizable cases.—(1) Any
officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a court having jurisdiction over the
local area within the limits of such station would have power to inquire
into or try under the provisions of Chapter XIII
(2) No proceeding of a police officer in any such case shall at any stage
be called in question on the ground that the case was one which such
officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an
investigation as above mentioned.”
8.The investigation referred to therein is the same investigation, the
various steps to be adopted for it have been elaborated in Chapter XII of
the Code. Such investigation would start with making the entry in a book
to be kept by the officer in charge of a police station, of the substance of
the information relating to the commission of a cognizable offence. The
investigation started thereafter can end up only with the report filed by the
police as indicated in Section 173 of the Code. The investigation
contemplated in that chapter can be commenced by the police even
without the order of a Magistrate. But that does not mean that when a
Magistrate orders an investigation under Section 156(3) it would be a
different kind of investigation. Such investigation must also end up only
with the report contemplated in Section 173 of the Code. But the
significant point to be noticed is, when a Magistrate orders investigation
under Chapter XII he does so before he takes cognizance of the offence.

But a Magistrate need not order any such investigation if he proposes

to take cognizance of the offence. Once he takes cognizance of the offence
he has to follow the procedure envisaged in Chapter XV of the Code. A
reading of Section 202(1) of the Code would convince that the
investigation referred to therein is of a limited nature. The Magistrate can
direct such an investigation to be made either by a police officer or by any
other person. Such investigation is only for helping the Magistrate to
decide whether or not there is sufficient ground for him to proceed further.
This can be discerned from the culminating words in Section 202(1) i.e.
“or direct an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding”.
 This is because he has already taken cognizance of the offence
disclosed in the complaint, and the domain of the case would thereafter
vest with him.
Hon’ble Supreme Court in the latest decision rendered in the case of
Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 SCC OnLine SC
569 dealt with the diffrences between the two and it reads as; Difference in
the power of Police to register and investigate an FIR under Section
154(1) read with 157 of the Code, and the Magistrate's direction to
register an FIR under Section 156(3) of the Code. Power of the Magistrate
to direct registration of an FIR under Section 156(3) in contrast with post-
cognizance stage power under Section 202 of the Code.
66. The operandi for registration of information in a cognizable offence
and eventual investigation is not limited to Police, and as observed above,
sub-section (3) to Section 156, subject to legal stipulations, gives the
ameliorating power to a Magistrate empowered under Section 190 to order
an investigation in a cognizable offence. Two different powers vested with
two distinct authorities, namely the Police and the Magistrate, who
discharge distinct functions and roles under the Code as indicated above
are not entirely imbricating.
67. The power of Magistrate to direct investigation falls under two limbs
of the Code : one is pre-cognizance stage under Section 156(3), and
another on cognizance under Chapter XIV (‘Conditions Requisite for
Initiation of Proceedings’; Sections 190-199) read with Chapter XV
(‘Complaints to Magistrates’; Sections 200-210). These two powers are
different and there also lies a procedural distinction between the two.
68. A three Judge Bench decision of this Court in Ramdev Food Products
Private Limited (supra) had examined the distinction between powers of
the Magistrate to direct registration of an FIR under Section 156(3) and
power of the Magistrate to proceed under Section 202 of the Code. It was
observed that the power under the former Section is to be exercised, on
receiving a complaint or a Police report or information from any person
other than the Police officer or upon his own knowledge, before he takes
cognizance under Section 190. Once the Magistrate takes cognizance, the
Magistrate has discretion to take recourse to his powers under Section 202,
which provides for postponement of the issue of process and inquire into
the case himself or direct investigation to be made by a Police officer or by
such other person as he thinks fit for the purpose of deciding whether or
not there are sufficient grounds for proceedings. The proviso to Section
202 states that no direction for investigation shall be made where a
complaint has not been made by a Court, unless the complainant and the
witnesses present (if any) are examined on oath under Section 200. When
it appears to the Magistrate that the offence complained of is triable
exclusively by the Court of Sessions, he shall call upon the complainant to
produce all his witnesses and examine them on oath. However, in such
cases, the Magistrate cannot issue direction for investigation of an offence.
Thus, the Magistrate has the power, when a written complaint is made, to
issue direction under Section 156(3), but this power is to be exercised
before the Magistrate takes cognizance of the offence under Section 190.
However, in both cases, whether under Section 156(3) or under Section
202 of the Code, the person accused as the perpetrator, when the
proceedings are pending before the Magistrate, remains unrepresented.
Under Section 203, the Magistrate, after considering the statement of the
complainant and witnesses (if any) on oath and the result of an inquiry (if
any) under Section 202, can dismiss the complaint if he is of the opinion
that there is no sufficient ground for proceeding and in every such case
briefly record his reasons. If the Magistrate after taking cognizance of the
offence, is of the opinion that there are sufficient grounds for proceeding
he will issue the process to the accused for appearance as per the
procedure and mode specified under Section 204 of the Code. Process to
the accused under Section 204 falls under Chapter XVI of the Code and is
issued post the cognizance and inquiry/investigation/evidence recorded in
a private complaint in terms of Section 202 of the Code.
Section 203/206 empowers the Magistrate to dismiss a complaint, if,
after considering the statement of oath of the complainant and his
witnesses and the result of the investigation u/s 202 Cr.P.C., he is of the
opinion that there is no sufficient ground for proceeding against the
accused. In coming to a decision whether there is sufficient ground for
proceeding with the complaint, the Magistrate must take into consideration
the previous proceedings, if any.
Hon’ble Supreme Court in Nirmaljit Singh Hun Vs. State of West
Bengal, AIR 1972 SC 2639, the Hon’ble Apex Court has held that the
words “sufficient ground” mean the satisfaction that a prima facie case is
made out against the person accused, by the evidence of witnesses entitled
to a reasonable degree of credit. They do not mean sufficient ground for
conviction.
Section 204/227 deal with issuance of process. It is not mandatory for
the Magistrate to record reasons in detail at the time of issuing process
against the accused persons. The Magistrate has to see whether there is
sufficient ground for proceeding against the accused. If in the opinion of
the Magistrate taking cognizance of an offence,there is sufficient ground
for proceeding against the accused he shall issue the process. The relevant
case laws on this topic are as under-
Hon‘ble Apex Court has held in the case of Bhushan Kumar vs.
State (N.C.T. of Delhi), (2012)2 SCC(Cri.) 872, that the expression
―cognizance in sections190 and 204 Cr.P.C. is entirely different thing
from initiation ofProceedings; rather it is the condition precedent to the
initiation of proceedings by the Magistrate or the Judge .Cognizance is
taken of the cases/offences and not of persons. Under section190 of the
Code, it is the application of judicial mind to the averments in the
complaint that constitute cognizance. At this stage, the Magistrate has to
be satisfied whether there is sufficient ground for proceeding and not
whether there is sufficient ground for conviction. Whether the evidence is
adequate for supporting the conviction can be determined only at the trial
not at the stage of inquiry. If there is sufficient ground for proceeding, the
Magistrate is empowered for issuance of under section 204 of the Code.
Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state
the reasons for issuance of summons. Section 204 Cr.P.C. mandates the
Magistrate to form an opinion as to whether there exists a sufficient
ground for summons to be issued but it is nowhere mentioned in Section
204 that the explicit narration of the same is mandatory, meaning thereby
that it is not a prerequisite for deciding the validity of the summons issued.
Therefore, the order passed by the Magistrate cannot be faulted with only
on the ground that the summoning order was not reasoned order.

Hon’ble Supreme Court in the case of Lalankumar Singh vs State

of Maharashtra (2022 LiveLaw (SC) 833) CrA 1757 OF 2022 dated 11
October 2022 held that, Code of Criminal Procedure, 1973 ; Section 204 -
The Magistrate is required to apply his mind as to whether sufficient
ground for proceeding exists in the case or not. The formation of such an
opinion is required to be stated in the order itself. The order is liable to be
set aside if no reasons are given therein while coming to the conclusion
that there is a prima facie case against the accused. No doubt, that the
order need not contain detailed reason. (Para 28 -30)
Some drastic changes were added to section 223 which is
corresponding to section 200 of Cr.P,C. This neccssited in issuing the
notice to the proposed accused. The question as to when that notice has to
be issued was dealt with by our Hon’ble High Court in the case of SRI
BASANAGOUDA R. PATIL (YATNAL) Vs SRI SHIVANANDA S.
PATIL (CRIMINAL PETITION No.7526 OF 2024) held that, Proviso to
sub-section (1) of Section 223 of the BNSS mandates that a Magistrate
while taking cognizance of an offence, on a complaint, shall examine upon
oath, the complainant and thenwitnesses present if any and reduce it into
writing. The proviso further mandates that no cognizance of an offence
shall be taken by the Magistrate without giving an opportunity to the
accused of being heard. Section 227 of the BNSS deals with issuance of
process which is akin to Section 204 of the Cr.P.C.
Our Hon’ble High Court in the case of Sri Sathya Sai Central Trust,
A Public Charitable Trust Vs State of Karnataka, (Crl.P.No.1422/2021
decided on 22nd Day of July- 20210 laid down the procedures to be
followed while taking cognizance based on the complaint and it reads as,
55. Based on the above discussion, the cognizance taking procedure
to be followed may be set out as follows :-
(i) After presentation of the complaint, the Magistrate must read
the complaint and if he finds on the face of it, commission of an
offence or offences is not disclosed, he can reject or dismiss the
complaint. But the Magistrate must be slow in rejecting the
complaint just on reading it because if the complaint is not properly
articulated, rejection of complaint may result in causing injustice to
the complainant. It is also possible that intelligent drafting may give
an impression that an offence has taken place, which sometimes.
Examine may not be true. Therefore it is better to the complainant
and the complaint and witnesses if necessary.
(ii) If after reading examining the present and the witness their (if
they are examination is necessary) under section 200 Cr.P.C. the
Magistrate arrives at conclusion that there are sufficient grounds to
proceed further, he shall take cognizance of the offence and issue
process to the accused.
(iii) Even after following the procedure set out in section 200, if the
Magistrate is not convinced about existence of sufficient materials to
take cognizance, he may resort to hold an inquiry himself or direct
investigation as contemplated under section 202.
(iv) If the Magistrate does not prima facie find materials as to
constitution of any offence after examining the complainant and
witnesses (if any), he can dismiss the complaint in accordance with
section 203.
 V) Resorting under to procedure section 202 is contemplated not
always mandatory, it may be resorted to only in the circumstances
stated in section 202. That means, cognizance may be taken or the
complaint may be rejected depending upon the situation even after
the stage of section 200.

(vi) It is not necessary that a Magistrate must endorse ”cognizance

taken” in the order sheet, but what is required is application of mind
and it must be depicted in a brief order. Decision as to issuing
process to the accused itself amounts to cognizance being taken.

(vii) Whenever investigating police officer files ‘B’ report, and the
complainant wants to contest the ‘B’ report, the Magistrate has to
follow procedure set out above.

The above stated procedure were laid down while interpreting

section 200 of Cr.P.C stood prior to to the introduction of
correspnding provision in BNSS i.e. 223. However the except the
fact that notice is to be issued prior to the taking of cognizance all
other procedures stand as it is.
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Section 156 of Cr.P.C. empowers the police officers to investigate

cognizable cases. Section 156 (3) of Cr.P.C says that any Magistrate
empower under section 190 may order the investigation of cognizable
offence by the police officers. The equivalent provision in BNSS is section
175. There is a drastic change in this provision. The proviso is added to
section 175(1) where-under power is given to the Superintendent of Police
to entrust the investigation to DYSP on considering the nature and gravity
of the offence.
Section 175(3) of BNSS says that the Magistrate empowered under
section 210 may, after considering the application supported by an
affidavit under section 173(4) and after making such enquiry as he thinks
necessary and submission made in this regard by the police officer, order
such an investigation.
 Another provision is added stating that if the complainant is against
the public servant arising in course of the discharge of his official duties,
order such investigation subject to:
(a) receiving a report containing facts and circumstances of the incident
from the officer superior to him: and
(b) After consideration of the assertion made by the public servant as to
be situation that led to the incident so alleged.

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