Filing a private criminal complaint to a Magistrate

A private criminal complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [Section 200 of the CrPC, 1973] is the statutory route into the Magistrate's court when the police will not register an FIR, when the offence is non-cognizable, or when the complainant prefers to drive the prosecution himself. This guide tracks the procedure from drafting and jurisdiction through examination on oath to issue of process.

The Bharatiya Nagarik Suraksha Sanhita, 2023, in force from 1 July 2024, preserves intact the private criminal complaint procedure that the Code of Criminal Procedure, 1973 carried in its Chapter XV. Sections 210, 222, 223, 225, 226 and 227 BNSS correspond, almost verbatim in substance, to Sections 190, 199, 200, 202, 203 and 204 CrPC. The route is well-trodden: the Magistrate is empowered to take cognizance of an offence "upon receiving a complaint" under Section 210(1)(a) BNSS [Section 190(1)(a) CrPC] and the procedure that follows is a self-contained ladder. The Supreme Court has described the procedure as a "filter" designed to keep frivolous prosecutions out and let prima facie cases through — Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 is the standing authority. This guide reads the procedure end-to-end for a complainant who knows what he is filing and why.

The statutory route

"Complaint" is defined in Section 2(1)(h) of the BNSS [Section 2(d) CrPC] as any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence. A police report is expressly excluded. Anyone who claims to know of the commission of a cognizable or non-cognizable offence can be the complainant; the victim is not the only person competent — A.R. Antulay v. R.S. Nayak (1984) 2 SCC 500 settled this for offences against the State, and the same logic carries to ordinary offences except where a special statute requires a particular complainant.

Once the petition of complaint is presented, the Magistrate, if he has territorial competence over the offence, takes cognizance under Section 210(1)(a) BNSS [Section 190(1)(a) CrPC] and proceeds to Section 223 BNSS [Section 200 CrPC]. He must examine the complainant on oath, and the witnesses present if any, reduce the substance of that examination to writing, and have the complainant and witnesses sign it along with him. If the petition is in writing and is made by a public servant in the discharge of official duties, or by a Court, the examination is not necessary. The same exception applies where the Magistrate, after taking cognizance, transfers the case to another Magistrate under Section 212 BNSS [Section 192 CrPC] for inquiry or trial — though if the first Magistrate did examine the complainant, the transferee need not re-examine. These exceptions are exhaustive; for ordinary private complainants, examination on oath is mandatory.

After examination, the Magistrate has three doors open: he may issue process under Section 227 BNSS [Section 204 CrPC] if a prima facie case is made out; he may postpone the issue of process under Section 225 BNSS [Section 202 CrPC] and either inquire into the case himself or direct an investigation by the police or any other person; or he may dismiss the complaint under Section 226 BNSS [Section 203 CrPC] if there is no sufficient ground for proceeding. The Supreme Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker (1960) 3 SCR 426 held that the inquiry at this pre-process stage is confined to ascertaining whether a prima facie case exists; it is not a trial, and the standard is not proof of guilt but the satisfaction that the materials disclose an offence.

Which Magistrate — jurisdiction, fees, limitation

Subject-matter competence. Section 210 BNSS [Section 190 CrPC] empowers a Chief Judicial Magistrate or any Judicial Magistrate of the First Class to take cognizance of any offence. A Magistrate of the Second Class can be empowered by the CJM under sub-section (2) to take cognizance of offences within his trial powers. An Executive Magistrate has no cognizance jurisdiction — the Supreme Court in Sita Ram v. Harilal 1978 CrLJ 1072 underscored that the functions under Sections 190, 192, 200 and 204 of the old Code (now Sections 210, 212, 223 and 227 BNSS) can be performed only by a Judicial Magistrate.

Territorial jurisdiction. Ordinarily the complaint must be filed in the court within whose local jurisdiction the offence was committed (the ordinary place-of-offence rule under Section 197 BNSS [Section 177 CrPC]). The continuing-offence, multi-place-offence and consequence-of-offence exceptions in Sections 198 to 202 BNSS [Sections 178 to 182 CrPC] expand this list — for instance, a Section 138 NI Act cheque-bounce complaint follows the special territorial rule in Section 142(2) of the NI Act read with Dashrath Rupsingh Rathod v. State of Maharashtra (2014) 9 SCC 129 (the place of the drawee bank). For a cheating case the place of inducement, the place of dishonest delivery of property, and the place where the consequence ensued are all available forums.

Pecuniary jurisdiction. Criminal courts do not have a pecuniary ceiling in the civil sense; what matters is the offence triable by the court under the First Schedule to the BNSS. Magistrates of the First Class can try offences punishable with imprisonment up to three years and fine up to fifty thousand rupees; offences attracting heavier sentences must be committed to a Sessions Court under Section 232 BNSS [Section 209 CrPC]. The complainant is not required to invoke Sessions-court jurisdiction at the filing stage; if the offence disclosed is triable exclusively by a Sessions Court, the proviso to Section 225(1) BNSS [proviso to Section 202(1) CrPC] requires the Magistrate to examine all the complainant's witnesses on oath before committing.

Court fees. Court fee on a private criminal complaint is fixed by State Court-Fees Acts and is uniformly small — typically between Rupees 5 and Rupees 25, depending on the State. The fee is paid by way of court-fee stamp affixed to the complaint. Some States additionally require a process fee for issue of summons or warrants under Section 227 BNSS — this is paid after the Magistrate decides to issue process.

Limitation. Section 514 BNSS [Section 468 CrPC] prescribes limitation by reference to the maximum punishment: six months for offences punishable with fine only, one year for offences punishable with imprisonment up to one year, three years for offences punishable with imprisonment between one and three years. There is no limitation for offences punishable with imprisonment exceeding three years. Section 515 BNSS [Section 469 CrPC] fixes the commencement of the period — from the date of the offence, or from the date the complainant first acquires knowledge of the offence, whichever is later. Section 522 BNSS [Section 473 CrPC] preserves the Magistrate's power to condone delay if the delay has been properly explained or where the interests of justice demand it.

What the complaint must contain

The petition of complaint is the foundation of every step that follows. A defective complaint can be returned under Section 224 BNSS [Section 201 CrPC] for presentation to the proper court, but a complaint that on its face fails to disclose an offence is liable to dismissal under Section 226 BNSS [Section 203 CrPC] without even reaching the examination stage. The Bombay High Court in M.S. Nova Electricals v. State 2007 CrLJ 535 emphasised that the verification of a complaint "is not an idle formality"; the Magistrate is required to ascertain through it whether the petition is genuine or frivolous.

The complaint should set out, in clear paragraphs:

• The cause-title — "In the Court of the Chief Judicial Magistrate / Judicial Magistrate First Class at [place]" — with a brief case-title naming the complainant and the accused.
• The full name, age, occupation and address of the complainant, with a clear statement of how the complainant knows the facts (personal knowledge, eyewitness, document holder, victim).
• The full names, addresses and (where known) descriptions of the proposed accused. Where the accused is a company or other juristic person, the principal officer who is sought to be made vicariously liable must be named separately.
• A chronological narrative of the facts constituting the offence — date, time, place, what was done, by whom, with what intention or knowledge. Vague or inferential allegations do not survive the prima facie test under Vadilal Panchal.
• The legal classification of the offence — the specific section or sections of the Bharatiya Nyaya Sanhita, 2023 [Indian Penal Code, 1860] or of the special statute that the conduct attracts. Citing the new BNS provision with the old IPC provision in brackets is standard practice during the 2024 to 2026 transition window.
• A list of witnesses to be produced under Section 223 BNSS along with one-line indications of what each witness will depose to. The Magistrate cannot examine witnesses who are not produced, and witnesses are not entitled to be examined on commission — the Kerala High Court in R. Gopalan Nair v. State of Kerala 1985 CrLJ 723 settled this point.
• A list of documents annexed (original, photocopy or certified copy as the case may be) — including, where applicable, any prior FIR or refusal communication, any electronic-evidence certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 [Section 65B of the Indian Evidence Act, 1872], and any sanction obtained.
• The prayer — that the Magistrate take cognizance of the offence, examine the complainant and witnesses, issue process under Section 227 BNSS, and try the accused according to law.
• A verification clause signed by the complainant, declaring that the contents of the complaint are true to his personal knowledge or are based on records or information believed to be true.

Two technical traps. First, the complaint must be signed by the complainant himself. The Calcutta High Court in Abhayeswari v. Kishori Mohan 42 Cal 19 (still cited) held that the Magistrate is entitled to refuse a complaint that is not signed. A complaint by a company must be signed by an authorised representative whose authority is annexed (board resolution, power of attorney). Second, sending a complaint by post is not by itself a defect — the Bombay High Court in Gurudas v. C.J.M. Goa 1994 CrLJ 444 held the Magistrate cannot reject a posted complaint — but the complainant must still appear in person to be examined on oath under Section 223. Examination by post is not permissible.

Procedure on receipt — examination, postponement, inquiry

Once the complaint is presented, the Magistrate's first action is to scrutinise it for jurisdiction. If he lacks competence, Section 224 BNSS [Section 201 CrPC] requires him to return it for presentation to the proper court, with an endorsement to that effect. He cannot dismiss it — the Andhra Pradesh High Court in Labour Enforcement Officer v. V.K. Reddy 1991 CrLJ 188 has clarified that return, not dismissal, is the correct order.

If jurisdiction exists, the Magistrate takes cognizance and proceeds to examine the complainant on oath under Section 223 BNSS. Witnesses who are present are examined the same day; witnesses who are not present cannot be summoned at this stage. The substance of the examination is recorded by the Magistrate in his own hand or by the Court clerk under his supervision, and signed by the complainant, witnesses and the Magistrate. The Supreme Court in Nirmaljit Singh Hoon v. State of W.B. (1973) 3 SCC 753 held that the purpose of this examination is to ascertain whether a prima facie case is made out, and to prevent the issue of process on a complaint that is false or vexatious or intended only to harass.

After examination, the Magistrate has the option to postpone the issue of process under Section 225 BNSS [Section 202 CrPC]. He must postpone in one specific situation — the 2005 amendment to the old Section 202(1) CrPC, carried forward into Section 225(1) BNSS, makes postponement mandatory where the accused resides beyond the local jurisdiction of the Magistrate. The Supreme Court in K.T. Joseph v. State of Kerala (2009) 15 SCC 199 read this proviso strictly: where the accused lives outside the Magistrate's territorial jurisdiction, an inquiry under Section 225 must precede the issue of summons. Process issued without such inquiry is liable to be quashed.

During the Section 225 BNSS inquiry, the Magistrate may take evidence of witnesses on oath, or direct an investigation by a police officer or such other person as he thinks fit. The proviso to sub-section (1) bars a direction for police investigation where the offence is triable exclusively by a Sessions Court — in such cases, the Magistrate must inquire himself and must examine all the complainant's witnesses on oath. The Supreme Court in Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638 held that examination of the complainant on solemn affirmation together with two witnesses amounts to a "proper inquiry" for the purposes of Section 202 CrPC.

The Section 225 inquiry is not the same as a Section 175(3) BNSS [Section 156(3) CrPC] direction to the police, even though both may involve police investigation. The Supreme Court in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy AIR 1976 SC 1672 drew the boundary: Section 175(3) BNSS operates at the pre-cognizance stage and asks the police to register and investigate de novo; Section 225 BNSS operates post-cognizance and supplies further material to a Magistrate already in seisin of the case. Once cognizance is taken, the Magistrate cannot fall back on Section 175(3).

Issue of process or dismissal

After examination under Section 223 BNSS, and after the Section 225 inquiry if one is held, the Magistrate must take a decision. He has two doors.

Issue of process under Section 227 BNSS [Section 204 CrPC]. If the Magistrate is of opinion that there is sufficient ground for proceeding, he must issue process — a summons in a summons case, a warrant (or summons, as the law and circumstances require) in a warrant case. "Sufficient ground" does not mean grounds for conviction. The Supreme Court in S.W. Palanitkar v. State of Bihar (2002) 1 SCC 241 read it as the satisfaction that a prima facie case is made out against the accused; the Magistrate is not adjudicating guilt at this stage. The order issuing process must show judicial application of mind — in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, the Supreme Court quashed an issue-of-process order because it was passed mechanically, without a reasoned consideration of how each director of a corporate accused was alleged to be liable. The judgment is now the standing authority on the duty of judicial scrutiny at the Section 227 stage.

Once process is issued, the proceedings move into the trial track. The accused appears (or is brought) before the Magistrate. The Magistrate then frames a charge in a warrant case under Section 263 BNSS [Section 240 CrPC], or proceeds to substance of accusation in a summons case under Section 274 BNSS [Section 251 CrPC]. The accused now acquires the locus standi he did not have at the Section 223 stage — the Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose AIR 1963 SC 1430 held that the proposed accused has no right to intervene during the Section 200 / 202 (now Section 223 / 225) inquiry, and the prima facie inquiry would be defeated if turned into a mini-trial.

Dismissal under Section 226 BNSS [Section 203 CrPC]. If after examination of the complainant, and after the Section 225 inquiry if any, the Magistrate is of opinion that there is no sufficient ground for proceeding, he must dismiss the complaint by a written order recording the reasons. Dismissal under Section 226 is not res judicata — a fresh complaint on the same facts can be filed before another competent Magistrate, but the Supreme Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876 held that a second complaint is entertainable only in exceptional circumstances: where the previous order was passed on incomplete material, where new facts have surfaced, or where there has been a manifest error of law. The bar is procedural and serves to prevent forum-shopping.

Common dismissals and how to avoid them

Most private complaints fail at the Section 226 stage, not at trial. The recurring patterns are stable across High Court reports.

The complaint does not disclose an offence on its own face. Allegations of breach of trust dressed up as criminal misappropriation, civil disputes recast as cheating, contractual defaults relabelled as forgery — these are the staple of dismissed complaints. The Supreme Court in S.W. Palanitkar (cited above) reiterated that if the petition of complaint does not disclose an offence, the Magistrate can dismiss it without even examining the complainant. The remedy is precision in drafting: each ingredient of the alleged offence must be matched by a corresponding factual averment.

No prima facie case after examination. The complainant's statement on oath under Section 223 may dilute or contradict the written complaint. A complainant who hedges on intent, or whose witnesses cannot speak to the operative facts, hands the Magistrate the material for a Section 226 dismissal. Treat the examination as the second filing: the statement on oath must be at least as strong as the petition.

No attempt to invoke the Section 173 / 175 BNSS police-investigation route first. Although a private complaint can be filed independently of any police complaint, where the offence is plainly cognizable and the complainant has not approached the police at all, the Magistrate may decline to take the case forward and direct the complainant to first invoke Section 175(3) BNSS [Section 156(3) CrPC] through the police. This is a discretion, not a bar, but it is exercised often.

Mechanical naming of accused without role-specific allegations. Pepsi Foods made it explicit: if a director, partner, or office-bearer of a corporate body is named, the complaint must say in what capacity and on what factual basis. Vicarious liability in criminal law is statutory (for instance Section 141 NI Act for cheque-bounce cases); it is not presumed. A complaint naming "all directors of the company" without role-specific particulars is liable to be quashed under Section 528 BNSS [Section 482 CrPC] or set aside on revision.

Quashing under Section 528 BNSS [Section 482 CrPC]. The Supreme Court in Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213 set out the High Court's inherent power to quash a complaint where the allegations, taken at face value, do not constitute an offence, or where the proceeding is manifestly an abuse of the process of court. State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 supplied the seven illustrative categories that now guide every Section 528 quashing petition. A complainant filing a private complaint must anticipate the quashing test: the petition should be drafted so that the seven Bhajan Lal categories are visibly inapplicable.

Practical sequencing for the complainant

The procedure under Chapter XV of the BNSS is straightforward only if the underlying choices — whether to file at all, against whom, on what offence, in which court — have been thought through. Three sequencing rules are worth flagging because they recur in High Court orders and rarely appear in form-books.

First, the choice between a Section 175(3) BNSS direction to the police and a Section 223 BNSS private complaint is binary at the outset. Filing both before the same Magistrate at the same time creates the procedural confusion that the Allahabad High Court in Chhedi v. State of U.P. 1991 CrLJ 3017 disapproved of. Pick a route, exhaust it, then move to the other if required.

Second, where the accused resides outside the Magistrate's territorial jurisdiction, the postponement-of-process mandate in Section 225 BNSS is not a courtesy; it is a precondition. Process issued without the inquiry is bad in law. In drafting, signal early in the complaint that an inquiry under Section 225 will be necessary and offer to produce additional evidence.

Third, for offences triable exclusively by a Sessions Court, the proviso to Section 225(1) BNSS [proviso to Section 202(1) CrPC] requires the Magistrate to examine all the complainant's witnesses on oath at the inquiry stage. A complainant who lists ten witnesses but produces only two leaves the Magistrate with no choice but to either adjourn repeatedly or dismiss; neither helps. Bring everyone the first time.

An unresolved question runs through Section 226 dismissals: when an order of dismissal is set aside on revision, is the Magistrate at the resumed stage required to begin afresh under Section 223, or can he proceed directly to issue process? The Bombay High Court in Maharaja Developers v. Udayasingh 2007 CrLJ 2207 (Bom DB) took the strict view that the Section 223 examination is a jurisdictional prerequisite that must be repeated; other High Courts have proceeded on the assumption that the prior examination survives the dismissal. The Supreme Court has not finally settled the point, and a careful complainant should be ready to be re-examined.

Outcome

A private criminal complaint under Section 223 BNSS [Section 200 CrPC] is not a substitute for police investigation, and it is not a faster route to the same destination. It is a separate statutory pathway designed for the cases where the State will not prosecute, where the offence is non-cognizable, or where the complainant prefers to drive the proceeding himself. The procedure is short on the page — Sections 210, 223, 225, 226 and 227 BNSS run to barely a dozen sub-sections — but every step is consequential. Vadilal Panchal sets the prima facie standard, Nirmaljit Singh Hoon defines the object of the examination, Pepsi Foods demands judicial application of mind to issue of process, and Mohinder Singh v. Gulwant Singh guards the entry against complaints that on their face disclose no offence. A complaint drafted with these four authorities in mind, presented in the correct court, with the correct verification, and pressed through examination by a complainant willing to bring his witnesses on the day, will normally clear the Section 226 filter and reach the Section 227 process stage. From there, the prosecution begins on the merits.