Criminal complaint before a Magistrate under the BNSS
When the police do not register or investigate, a person can file a complaint directly before the Magistrate under Section 223 BNSS (formerly Section 200 CrPC), or apply under Section 175(3) BNSS (formerly Section 156(3) CrPC) asking the Magistrate to direct the police to investigate. Under the BNSS, the applicant must first approach the Superintendent of Police under Section 173(4).
Key points
- Complaint to a Magistrate: Section 223 BNSS (formerly 200 CrPC); the complainant and witnesses are examined on oath.
- Under the BNSS, the Magistrate gives the accused an opportunity of being heard before taking cognizance on a complaint (proviso to Section 223(1)).
- Application for an order to investigate: Section 175(3) BNSS (formerly 156(3) CrPC), supported by an affidavit (Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287).
- Before applying under Section 175(3), the informant must have approached the Superintendent of Police under Section 173(4) BNSS.
The law: old and new provisions
| Subject | Law now | Before 1 July 2024 |
|---|---|---|
| Complaint to a Magistrate | Section 223 BNSS | Section 200 CrPC |
| Magistrate may order investigation | Section 175(3) BNSS | Section 156(3) CrPC |
| FIR | Section 173 BNSS | Section 154 CrPC |
Which court or authority
The Judicial Magistrate of the First Class having territorial jurisdiction.
What the document should contain
- Facts constituting each offence, with dates and places
- Sections of the BNS attracted
- Steps taken with the police (complaint to the SHO and SP, with dates)
- List of witnesses and documents
- Prayer to summon and try the accused, or to direct registration and investigation
Documents to attach
- Copies of complaints made to the police and the SP, with proof of delivery
- Documents and evidence relied on
- Affidavit of the complainant
Procedure
- Approach the SHO; if no FIR, send a complaint to the SP under Section 173(4)
- File the complaint or Section 175(3) application before the Magistrate with an affidavit
- Pre-summoning evidence is recorded; the accused is heard before cognizance; summons issue
Common mistakes
- Not approaching the SP first
- No affidavit with a Section 175(3) application
- Filing a civil dispute as a criminal complaint
Frequently asked questions
What replaced Section 156(3) CrPC?
Section 175(3) of the BNSS, for matters from 1 July 2024.
Is an affidavit necessary with a Section 175(3) application?
Yes. Following Priyanka Srivastava (2015), courts require the application to be supported by an affidavit, and the BNSS requires prior recourse to the SP.