Cognizance of Offences by Magistrates

Under Section 210 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced Section 190 of the CrPC, a Magistrate of the first class, or a Magistrate of the second class given that power, takes cognizance of an offence in one of three ways: on a complaint, on a police report, or on information from someone other than a police officer or the Magistrate's own knowledge. Taking cognizance means the Magistrate applies judicial mind to the facts and decides to proceed with the case. For complaint cases, Section 223 now adds a new safeguard: no cognizance without first giving the accused an opportunity of being heard.

This explainer is for B.A. LL.B. and LL.B. students preparing for criminal procedure papers, and for any citizen who has filed, or been named in, a private complaint. Cognizance is the point at which a criminal case truly begins in court, so knowing its rules tells you when a case can be stopped early and when it cannot.

What does "taking cognizance" actually mean?

The BNSS does not define the word. In practice, cognizance is the stage where the Magistrate, after reading the complaint or police report, decides that the facts disclose an offence worth proceeding with. It is different from registering an FIR (a police act) and different from issuing summons (a later step under Section 227). A useful way to remember it: the police investigate, the Magistrate takes cognizance, and only then does process issue against the accused.

Think of a shopkeeper in Nagercoil who files a cheating complaint against a supplier. Filing the complaint does not start the case. The case starts in law only when the Magistrate, having examined the complaint, takes cognizance of the offence.

What are the three routes to cognizance under Section 210 BNSS?

1. On a complaint (Section 210(1)(a)). A complaint of facts that constitute the offence. The BNSS expressly includes a complaint filed by a person authorised under any special law, which matters for agencies that prosecute by complaint.
2. On a police report (Section 210(1)(b)). The final report after investigation. The BNSS now says this report may be submitted in any mode, including electronic mode.
3. On information or own knowledge (Section 210(1)(c)). Information received from any person other than a police officer, or the Magistrate's own knowledge that the offence has been committed.

Under Section 210(2), the Chief Judicial Magistrate may confer on a Magistrate of the second class the power to take cognizance, but only of offences that Magistrate is competent to inquire into or try. Once cognizance is taken, Section 212 lets the Chief Judicial Magistrate (or a first class Magistrate authorised by the Chief Judicial Magistrate) make over the case to another competent Magistrate. A Court of Session, by contrast, cannot take cognizance as a court of original jurisdiction unless the case is committed to it (Section 213 BNSS), except where the law expressly provides otherwise.

What happens in a private complaint case?

The complaint route has its own procedure in Sections 223 to 227 BNSS (old CrPC Sections 200 to 204).

• Examination on oath (Section 223(1)). The Magistrate examines the complainant and any witnesses present on oath, reduces it to writing, and has it signed. This is not needed where a public servant acting in official duty, or a Court, files a written complaint, or where the case is made over under Section 212.
• Hearing the accused before cognizance (first proviso to Section 223(1)). No cognizance can be taken without giving the accused an opportunity of being heard. The old Section 200 CrPC had no such proviso, so this is a real change for complaint cases.
• Complaints against public servants (Section 223(2)). Where the complaint concerns an act in the discharge of official duties, the public servant must be given an opportunity to explain the incident, and a report from the superior officer must be received, before cognizance.
• Postponing process (Section 225). The Magistrate may inquire personally or direct an investigation before deciding to proceed. Postponement is compulsory where the accused lives outside the Magistrate's jurisdiction. No investigation can be directed if the offence is triable exclusively by the Court of Session.
• Dismissal (Section 226). If there is no sufficient ground, the complaint is dismissed with brief reasons recorded.
• Issue of process (Section 227). If there is sufficient ground, summons or a warrant issues. The BNSS allows issue through electronic means, requires the list of prosecution witnesses to be filed first, and allows dismissal if process fees required by law are not paid within a reasonable time.

When is cognizance barred?

Some offences need a specific complainant or a government sanction before any court can take cognizance.

• Section 215 BNSS (old Section 195 CrPC). Offences against the lawful authority of public servants (BNS Sections 206 to 223, except 209) need a written complaint from the public servant concerned or a superior. Offences against public justice, such as false evidence in court, need a written complaint by the court concerned.
• Section 218 BNSS (old Section 197 CrPC). A Judge, Magistrate or public servant removable only with government sanction cannot be prosecuted for acts in official duty without prior sanction. The BNSS adds a 120 day limit for the government to decide, after which sanction is deemed granted. No sanction is needed where a public servant is accused of an offence under BNS Sections 64, 65, 66, 68, 69, 70, 71, 74, 75, 76, 77, 78, 79, 143, 199 or 200. Note that Section 67 is not on that list, so do not write "64 to 71" in an answer.
• Limitation (Section 514 BNSS, old Section 468 CrPC). Cognizance is barred after six months for offences punishable with fine only, one year where imprisonment does not exceed one year, and three years where it exceeds one year but not three years. The Explanation fixes the relevant date as the date of filing the complaint under Section 223 or of recording information under Section 173.

Take a tenant in Madurai who wants to prosecute an official for an act done while evicting him. Before anything else, he must check whether Section 218 sanction is needed and whether Section 223(2) applies. Free advice is available through the college legal aid clinic.

How do courts read these provisions?

Courts have long treated cognizance as an act of the court applying its mind to the offence, not to the offender, and have warned Magistrates that summoning a person to face criminal trial is a serious matter that should not happen mechanically. Those ideas were developed under Sections 190 and 200 to 204 of the CrPC, and they carry over because the BNSS keeps the same structure. The first proviso to Section 223 has no CrPC equivalent, so older case law says nothing about how the pre-cognizance hearing should be run. Expect that question to be shaped by new BNSS rulings. Before citing any judgment in an answer or a petition, read the full text from the Supreme Court or Madras High Court website and confirm the case name, year and whether it was decided under the CrPC or the BNSS.

What does a common mistake look like?

Students often treat Section 223 as if it still reads like old Section 200 CrPC. It does not. Three points get missed most:

• The examination of the complainant must be signed by the complainant, the witnesses and the Magistrate. Forgetting the Magistrate's signature is a frequent slip.
• Where a case is made over under Section 212 after the first Magistrate has already examined the complainant, the third proviso to Section 223(1) says the second Magistrate need not examine them again.
• Under the proviso to Section 225(1), no investigation can be directed on a complaint not made by a Court unless the complainant and witnesses present have first been examined on oath under Section 223.

How should you write about cognizance in an exam?

1. Start with a one line meaning of cognizance and name Section 210 BNSS, with Section 190 CrPC in brackets.
2. Set out the three routes in Section 210(1)(a) to (c) and the Section 210(2) power of the Chief Judicial Magistrate.
3. Explain the complaint procedure in Sections 223 to 227 and highlight the new proviso on hearing the accused.
4. Add the bars: Sections 215 and 218, and limitation under Section 514.
5. Close with two or three leading judgments from your prescribed casebook, and the BNSS changes (electronic police report, 120 day deemed sanction, hearing before cognizance) to show you know the current law.

Sources

• Section 210 BNSS (AdvocateKhoj): the three routes to cognizance and the power to authorise second class Magistrates.
• Section 212 BNSS (AdvocateKhoj): making over of cases to other Magistrates.
• Section 213 BNSS (AdvocateKhoj): cognizance by the Court of Session only on committal.
• Section 215 BNSS (AdvocateKhoj): complaint by a public servant or court needed for certain offences.
• Section 223 BNSS (AdvocateKhoj): examination of the complainant and hearing of the accused before cognizance.
• Section 225 BNSS (AdvocateKhoj): postponement of issue of process and inquiry by the Magistrate.
• Section 218 BNSS (AdvocateKhoj): sanction to prosecute Judges and public servants, with the 120 day limit.
• Section 514 BNSS (AdvocateKhoj): limitation periods for taking cognizance.
• Section 190 CrPC (AdvocateKhoj): the old provision, for comparison.