This post was originally based on old criminal laws, which have now been revised under the new criminal laws, the 2023 Bhartiya Nyaya Sanhita (BNS), 2023 Bhartiya Nagrik Suraksha adhiniyam (BNSS), and 2023 Bhartiya Sakshya Adhiniyam (BSA). The new amendments in criminal laws mark a transformative shift in the Indian legal landscape, addressing emerging challenges and ensuring greater protection of rights. These changes include the introduction of more stringent provisions for cybercrimes, sexual offences, and crimes against vulnerable groups. In response, the law notes have been thoroughly revised to incorporate these updates, providing readers with detailed analyses and practical implications of the new laws. The updated notes aim to equip students and professionals with the knowledge to explore the evolving legal framework effectively.
Introduction
Any offence committed requires certain records and documents to take action before starting the criminal procedures. FIR and complaint are one of those prerequisites.
A cognizable case means a case in which a police officer may be arrested without a warrant, in accordance with the First Schedule of Bhartiya Nagrik Suraksha Sanhita, or under any other law for the time being in force. Whereas, non-cognizable offence means in which a police officer has no authority to arrest without warrant.
Complaint (Section 1 (h) BNSS)
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Bhartiya Nagrik Suraksha Sanhita that some person, whether known or unknown, has committed an offence, but it does not include a police report.
To constitute a complaint there must be an allegation made with a view to the recipient taking action under the Code, charging some person with a particular offence. A complaint need not necessarily be made by the person aggrieved but may be made by any person aware of the offence. The complaint need not specify any offender or even the section of the law which makes the act or omission punishable.
Although, when after investigation it is discovered that offence is non-cognizable, a police report in a case can also be considered as a complaint. In such a condition, the officer who prepares the report is known to be as a complainant.
Any person is allowed to file a complaint, except in the case of marriage and defamation, where the only aggrieved party can complain. In a complaint, the complainant requests to penalise the culprit appropriately. A mere presentation of a petition to a Magistrate to enable him to take administrative action is not a complaint within the terms of the definition.
If a complaint is received by the Magistrate, the power to take cognizance on the basis of such complaint is under Section 210 of Cr.P.C. However, further action on such a complaint has to be taken under Sections 223-227 of BNSS. Under Section 223 BNSS., the magistrate is required to record the statement of the complainant on oath and also of other witnesses, if present. The objective sought to be achieved by Section 223 is that a large number of complaints are filed by private individuals, many of which may be frivolous complaints. Therefore, it is considered necessary to verify the details of such complaints by examining the complainant on oath under Section 223 of BNSS.
The newly added first proviso to Section 223(1) provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. A new sub-section (2) of Section 223 provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in the 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 a public servant is received.
Cognizance of offences by Magistrates (Section 210, BNSS)
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (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;
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.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
First Information Report (FIR)
In criminal law, FIR is the report of information that the police receives first in point of time, regarding the commission of the cognizable offence. The term cognizable offence refers to the crime in which the police has the right to arrest the accused without any warrant and can start an investigation.
Section 173 of The Bharatiya Nagarik Suraksha Sanhita (BNSS):
Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, irrespective of the area where the offence is committed may be given orally or by electronic communication and if given to an officer in charge of a police station,—
(i) orally, it shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it;
(ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:
Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that—
(a) in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim.
(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in-charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,—
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case.
(4) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.
