Information to Police and their Powers to Investigate

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Information to Police and their Powers to

Investigate
Learning Objectives
Comprehend Legal Framework
• Understand the procedural rules for registering cognizable and non-cognizable offenses under BNSS, 2023.
• Learn distinctions between the BNSS and the previous CrPC provisions.
Analyze Key Changes Introduced by BNSS
• Recognize new features such as Zero FIR, mandatory forensic evidence collection, and electronic FIR registration.
• Understand the implications of procedural updates in investigations and reporting.
Understand Investigation Processes
• Learn the step-by-step process for FIR registration, police reports, and further investigation.
• Explore roles of police officers and Magistrates in supervising and conducting investigations.
– Examine scenarios requiring judicial approval for investigation.
– Study the involvement of Magistrates in detention and remand procedures.
Examine Judicial Oversight and Safeguards
• Analyze judicial control over investigations, including detention limits, remand procedures, and ensuring voluntariness in confessions.
• Study safeguards for vulnerable groups and witnesses under BNSS.
Interpret Case Law and Evidentiary Value
• Understand judicial precedents that shape the application of BNSS provisions.
• Examine the evidentiary role of FIRs, police reports, and confessions during trials.
– Explore conditions for admissibility of confessions under BNSS.
– Study the limitations of statements recorded during investigations.

Information to police with respect to the nature of offence is categorized into two aspects:
• Where information is received as to the commission of a cognizable offence [Section 173].
• Where information is received as to the commission of a non-cognizable offence [Section 174].

Scope of Investigation
‘Investigation’ is defined in Section 2(1)(j). It covers all of the
Sanhita’s evidence-gathering procedures. A police officer or
another individual designated by the Magistrate, but not the
Magistrate herself, conducts the investigation.
Investigation generally consists of:
• Ascertainment of facts and circumstances of the case.
• Discovery and arrest of the offender.
• Collection of evidence relating to the commission of the Investigation by CBI
offence. It may consist of the examination of various In Hemant Dhasmana v. CBI, (2001) 7 SCC 536, the Supreme
persons and the search and seizure of various things. Court made it clear that the rules of Chapter XII of the Code
• Formation of opinion on the basis of materials collected, [now Chapter XIII of BNSS] would still be applicable even
whether the accused has committed the offence or not. if the CBI carried out the investigation. Officers under the

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Delhi Special Police Establishment Act would be considered • If given in writing or reduced to writing, it shall be signed
“police” for the purposes of this Chapter’s investigation. by the person giving it.
Information pertaining to the commission of cognizable • The substance of the information shall be entered in a
cases is covered in Section 173. Although the Sanhita does book in such form as the State Government may prescribe
not define the term, it is commonly referred to as the First on this behalf.
Information Report (FIR). • A copy of the information recorded should be given to the
informant or the victim free of cost.
Information in Cognizable Cases – First
Information Report Changes Introduced by Sanhita
• The Sanhita has introduced the concept of Zero FIR in
Bharatiya Nagarik Suraksha Sanhita (BNSS) does not define the provision. This means that information relating to a
the term First Information Report (FIR). Nonetheless, cognizable offence can be given at any place, irrespective
Section 173 of the Sanhita contains the concept of FIR. of the area where the offence is committed.
It is information about the commission of a crime that
• It has made provision for the registration of FIR
is communicated to a police officer in charge of a station,
electronically. A new sub-section in the form of Section
either verbally, in writing, or electronically. The process for
173(1)(iii) has been added, which provides that if
recording the information provided in cognizable offenses is
such information has been given through electronic
outlined in Section 173.
communication, it shall be taken on record by the officer
Object and Importance of FIR on being signed within three days by the person giving it.
According to State of Bombay v. Rusy Mistry, AIR 1960 SC • The term ‘electronic communication’ has been defined in
391, a First Information Report is information about the Section 2(1)(j) of BNSS.
commission of a cognizable offense that is the first in time
and the basis for initiating an investigation into that offense. Zero FIR
The concept of Zero FIR allows for the registration of an FIR
The Court established the following goals of a formal
at any police station, regardless of jurisdiction, if the crime
complaint in the Hasib v. State of Bihar, (1972) 4 SCC 773
occurred elsewhere. The use of the words “irrespective
case:
of the area where the offence is committed” implies the
• From the informant’s perspective, it initiates the criminal concept of Zero FIR in Section 173 of BNSS.
law.
• For example, if a crime has been committed at Place X, the
• From the perspective of the investigating agency, it assists FIR can be registered at Place Y. The FIR is later transferred
in gathering information regarding the alleged criminal to the appropriate police station having jurisdiction over
activity so that appropriate actions can be taken to track the case.
down and prosecute the guilty.
• This concept is particularly important in cases requiring
Essentials of Section 173 an immediate and urgent response to ensure no time is
wasted in registering the FIR.
• It is information relating to the commission of a cognizable
offence. • It is called Zero FIR because, at the time of registration
at a place where the crime has not been committed, the
• Information is given irrespective of the area where the
FIR number is not mentioned. The FIR number is assigned
offence is committed.
only after it is transferred to the appropriate jurisdiction.
• It is given by the informant to the officer-in-charge of a
police station. Who Can Lodge FIR?
• It may be given either orally, in writing, or through An eyewitness does not have to file a formal complaint. In
electronic communication. Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288,
• If given orally, it should be reduced to writing by the the Supreme Court ruled that anyone could file a formal
officer in charge of a police station or under his direction. complaint and start the criminal justice system. In these
• If given through electronic communication, it shall be situations, locus standi is irrelevant.
taken on record and signed by the person giving it within
three days.
Can a Telephonic Message Constitute FIR?
• The Supreme Court ruled in Soma Bhai v. State of Gujarat,
• It should be read over to the informant.
(1973) 3 SCC 114, that a phone call may still qualify as

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a formal complaint if it reveals a crime that can be Note: There is no equivalent clause in the erestwhile CrPC
prosecuted. for Section 173(3), which was a recently added provision.
• In Patai alias Krishna Kumar v. State of Uttar Pradesh,
AIR 2010 SC 2254, the Supreme Court ruled that an Remedies Available on Non-Registration of
information must be in the form of a complaint or FIR
accusation pertaining to the commission of a cognizable
offense in order to be considered a formal complaint • The informant has the following choices if the responsible
or FIR. An enigmatic message documenting an incident police officer declines to file a formal complaint under
cannot be referred to as a formal complaint. Section 173(1):
• The Supreme Court ruled in Ramsingh Bavaji Jadeja v. ͵ Section 173(4): Remedy Before Superintendent of
State of Gujarat, (1994) 2 SCC 685 that a cryptic phone Police:
message cannot be considered a formal complaint if • The Superintendent of Police must receive the information
the investigating officer goes to the scene to gather in writing and via postal mail.
information about the incident. However, information • The Superintendent will either carry out the investigation
given over the phone that is not cryptic and that, on the himself or assign any other lower-level officer to do so if
surface, satisfies the officer regarding the commission of he is convinced that a crime is being committed.
an offense may be considered a formal complaint (FIR)
2. Addressing the Magistrate [Section 173(4) in accordance
if the officer leaves the police station after recording the
with Section 175(4)]: A person may approach a Magistrate
information.
under Section 173(4), who may order the registration of a
Proviso to Section 173 formal complaint and an investigation into the matter.

• A woman police officer or any female officer will record The Supreme Court ruled in M. Subramaniam v. S. Janaki,
the information if it is provided by a woman against whom (2020) 16 SCC 728, that the informant must first approach the
offenses under Sections 64, 65, 66, 67, 68, 69, 70, 71, 74, Superintendent of Police under Section 154(3) of the CrPC
75, 76, 77, 78, 79, and 124 of Bharatiya Nyaya Sanhita [now Section 173(4) of the BNSS] and then the Magistrate
(BNS) are alleged to have been committed or attempted. under Section 156(3) [now Section 175(4) of the BNSS] if the
police do not register a FIR. Unless all other options have
• Such information must be recorded at the home of the been exhausted, a writ petition cannot be the first course
person wishing to report or at a convenient location of of action.
their choosing if the person against whom such offenses
are alleged is temporarily or permanently mentally or
physically disabled. Mandatory Registration of FIR
͵ When accompanied by a special educator or In Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, the Supreme
interpreter, if necessary. Court gave an affirmative response to the question of
͵ Such information will be videotaped as it is recorded. whether the police must file a formal complaint (FIR) based
on information provided by the informant. The Court ruled
͵ As soon as possible, the police officer must have that if the information reveals the commission of a crime
the person’s statement recorded by a Magistrate in that can be prosecuted, the police officer has an obligation
accordance with BNSS Section 183(6)(a). to file a formal complaint. It is not an option for the police to
make a preliminary investigation before deciding whether to
Procedure in Cognizable Offences file a formal complaint.
Punishable with Imprisonment Between Three
Section 154 was enacted with the intention of needful FIR
and Seven Years registration. The use of the word “shall” in Section 173
According to Section 173(3), the officer in charge may, with makes clear that the provision is mandatory. In both State
the prior consent of an officer not lower than the rank of of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and Lalita
Deputy Superintendent of Police, and taking into account Kumari’s case, the Supreme Court made it clear that the
the nature and seriousness of the offense, either conduct words “reasonable” and “credible” do not qualify the word
a preliminary inquiry to determine whether there is a prima “information” in Section 154 [now Section 173 of BNSS].
facie case for proceeding in the matter within 14 days While filing a formal complaint, it is not required that the
or proceed with the investigation when there is a prima accused be taken into custody right away.
facie case. This is applicable if the information relates to a
cognizable offence punishable by imprisonment of three
years or more but less than seven years.

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Types of FIR principle under Section 41 [now Section 35 of BNSS], a

formal complaint initiates the criminal law. Arrest and FIR
In the case of Lalita Kumari v. Govt. of U.P. 2014 2 SCC 1, the registration have different requirements.
Supreme Court ruled that the Code of Criminal Procedure
[now BNSS] considers two types of FIRs:
Delay in Lodging FIR
• A properly signed FIR is filed at the police station by an
informant to the relevant officer in accordance with Early information about the accused, their role, the incident,
Section 154(1) [now Section 173 of the BNSS]. and witnesses is what prompt FIR registration is meant to
gather (Gajanan Dashrath Kharate v. State of Maharashtra,
• Police-Initiated FIR: A police-initiated FIR is filed in
2016 4 SCC 604; Mukesh v. State (NCT of Delhi), (2017) 2 SCC
response to any information, whether received or not,
(Cr) 673). A mere delay in lodging an FIR cannot be grounds
and it must be properly documented and forwarded to
to dismiss the prosecution case. Unexplained or long delays
the Magistrate right away.
may raise suspicion about the prosecution’s version of the
events.
Cases Requiring Preliminary Inquiry Before
The Court stated in the State of U.P. v. Raghuvir, (2018) 13
Registration of FIR SCC 732, that considering the potential for concoction, a
While registration of FIR is mandatory for cognizable offences, delay in filing a formal complaint may result in scrutiny. The
the Court in Lalita Kumari’s case reserved a few categories of Supreme Court held in Mohammad Wajid v. State of U.P.,
cases where a preliminary inquiry can be conducted before 2023 INSC 683 that a delay by itself does not invalidate a
registering an FIR. These include: First Information Report (FIR) unless it, in conjunction with
other factors, makes the prosecution’s case unlikely.
• Matrimonial or family disputes.
• Commercial disputes.
Evidentiary Value of FIR
• Medical negligence cases.
Despite being a crucial document that initiates the criminal
• Corruption cases.
law, a formal complaint is not a proof of the facts it contains
• Cases with abnormal delay in registration of FIR. (Damodarprasad Chandrikaprasad v. State of Maharashtra,
Objective of Preliminary Inquiry: The purpose of the inquiry (1972) 1 SCC 107).
is not to verify the information but to ascertain whether
it discloses a cognizable offence (Social Action Forum for Key Points
Manav Adhikar v. Union of India, (2018) 10 SCC 443). • An FIR, while not defined in law, is the initial report of a
cognizable offense and serves to set the law in motion,
Second FIR obligating the state to provide redressal to victims and
protect society.
The Supreme Court has consistently held that registering
a second FIR for the same incident or transaction is • FIRs do not have substantive evidentiary value because
impermissible. In Amitbhai Anilchandra Shah v. CBI, AIR statements within them are not made under oath, during
2013 SC 3794, the Supreme Court ruled that a second FIR trial proceedings, or subject to cross-examination.
for different offences arising from the same transaction • FIRs are valuable for corroborating or contradicting the
is violative of Article 21 of the Constitution. If the offence statements of the informant, refreshing their memory,
forming part of the second FIR arises as a consequence of and impeaching their creditworthiness.
the offence alleged in the first FIR, both are treated as part • Section 145 of the Indian Evidence Act allows for cross-
of the same incident, making the second FIR impermissible examination on prior statements, enabling the use of
(Surender Kaushik v. State of U.P., (2013) 5 SCC 148). In FIR content to contradict or corroborate the informer’s
Tarak Dash Mukharjee v. State of Uttar Pradesh, (2022), the testimony.
Supreme Court emphasized that registering multiple FIRs for
• An FIR lodged by a deceased person can be admissible as
the same offence amounts to an abuse of the process of law.
a dying declaration under Section 32(1) of the Evidence
Act if it relates to the circumstances of their death.
FIR and Arrest • If the informant of an offense is the accused, the FIR
In Joginder Kumar v. State of U.P., (1994) 4 SCC 260, the cannot be used for corroboration or contradiction, and if
Supreme Court ruled that filing a formal complaint and the FIR is confessional, it is inadmissible under Section 25
making an arrest are two distinct processes. While an of the Evidence Act.
arrest necessitates adherence to the reasonableness

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• Despite limitations, the content of an FIR can become Where the Magistrate Directs the Police to
relevant under Sections 8 and 11 of the Evidence Act
as part of the informant’s conduct, highlighting its
Investigate a Non-cognizable Case [Section
circumstantial value 174(2)]
Supreme Court in State of Maharashtra v. Sarangdhar Singh
Use of FIR in Trial Shiv Das Singh Chavan, (2011) 1 SCC 577 has clarified that
an FIR is not an indispensable requisite for the investigation
• In Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119,
of a crime. Even without FIR, a police officer can proceed
the Supreme Court ruled that, as long as the informant
to investigate under Section 157(1) [now Section 176(1) of
is called as a witness during the trial, an FIR may be used
BNSS] if he suspects the commission of a cognizable offence.
to either contradict or confirm the information under
Section 145 of the Evidence Act [now Section 148 of BSA]
or Section 157 of the Indian Evidence Act [now Section Direction of Investigation under Section
160 of BSA]. 175
• FIRs cannot be used to support or refute any other Police have the authority to look into a cognizable case
witness, but they can be used to cross-examine and under Section 175. Any officer in charge of a police station
contradict the informant. may look into a cognizable case without the Magistrate’s
permission under Section 175(1).
Information in non-cognizable cases Section 175 (1): Police have a broad authority under Section
Information about non-cognizable cases and their 175(1) to look into a crime that can be prosecuted without
investigation are covered under Section 174(1). Any a Magistrate’s approval. The judiciary has no control over
information pertaining to the commission of a non- this power. The High Court may halt an investigation under
cognizable case must be documented in a designated Article 226 of the Constitution or Section 528 of the Sanhita
book and (a) forwarded to the Magistrate along with the if the FIR or other pertinent documents in a case fail to reveal
informant; (b) the daily diary report of all such cases must the commission of a crime that is punishable by law.
be forwarded to the Magistrate every two weeks. The police officer’s local jurisdiction to investigate the case
According to Section 174(1)(ii) of the BNSS, 2023, the police is determined by the latter portion of Section 175(1). Within
officer must provide the Magistrate with a daily diary report the boundaries of the police station, a police officer has the
of every non-cognizable case every two weeks. The CrPC authority to look into any offenses that would be tried by a
contained no such clause. Court with local jurisdiction under Chapter XIV [Sections 197–
209] of the Sanhita. The police’s jurisdiction to investigate a
Additionally, Section 174(2) states that a police officer
case within the confines of the police station is, in essence,
cannot look into a case that is not identifiable without a
coextensive with the Court’s territorial jurisdiction to try the
Magistrate’s order. The Magistrate has the authority to try
case under Chapter XIV. Any irregularity in the investigation
the case or commit it to trial. The investigating officer will
will not invalidate the trial, as stated in Section 175(4).
have all the investigative authority of an officer in charge
of the police station in cases that are cognizable if the In State of Orissa v. Sharat Chandra Sahu, (1996) 6 SCC
Magistrate authorizes the investigation under Section 174(2). 435, the Supreme Court made it clear that police are not
It implies that the authority and process to be followed in prohibited from looking into any non-cognizable offense
an investigation are the same as those in cognizable cases, resulting from the same facts while looking into a cognizable
provided the Magistrate authorizes the investigation. offense.
[174(3)].
Proviso to Section 175(1)
It should be mentioned that the police cannot arrest
the accused in a non-cognizable case without an arrest According to the proviso to Section 175(1), the Superintendent
warrant, even if the Magistrate authorizes the investigation. of Police may order the Deputy Superintendent of Police
Additionally, Section 506(b) states that the proceedings will to conduct an investigation into the matter, given the
not be vitiated if the Magistrate, who lacks the authority, seriousness and nature of the offense.
orders an investigation under Section 174 in good faith. This proviso was recently added. According to the proviso
Section 174(4) states that if a case involves both cognizable to Section 175(1) BNSS, 2023, the Superintendent of Police
and non-cognizable offenses, it will be considered cognizable may ask the Deputy Superintendent of Police to look into the
even though a small number of the offenses are non- matter, given the seriousness and nature of the offense. The
cognizable. CrPC contained no such clause.

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Powers of Magistrate under Section 175(3) Sections 154(1) and 154(3)] before submitting an application
According to Section 175(3), any Magistrate with authority under Section 173(4) [formerly Section 156(3)].
under Section 210 may, after reviewing an application The discretion of the Magistrate: Under Sections 173(4)
backed by an affidavit filed under Section 173(4), conducting and 175(3), a Magistrate is not required to rule on every
any necessary investigation, and considering the police application. In these passages, the word “may” denotes
officer’s submissions in this regard, order an officer in charge discretion. According to the Supreme Court’s ruling in Suresh
of a police station to look into any crime that is subject to Chandra Jain v. State of Madhya Pradesh, (2001) 2 SCC 628,
criminal charges. The cognizance of offenses is covered in a Magistrate may consider an application under Section
Section 210. 156(3) [now Section 173(4) of BNSS] to be a complaint.
The complainant may still file a complaint under Section
Changes in Section 175(3) 200 of the Code [now Section 223 of BNSS] even if their
• Section 175(3) of BNSS, 2023 has been modified compared application under Section 156(3) [now Section 173(4)] is
to its corresponding provision in Section 156(3) of CrPC. denied.
• Section 175(3) now requires the Magistrate empowered In CBI v. State of Rajasthan, AIR 2001 SC 668, the Supreme
under Section 210 to: Court made it clear that Magistrates cannot order the CBI
A. Consider the application supported by an affidavit made to carry out investigations in accordance with the Code of
under Section 173(4). Criminal Procedure [now BNSS]. Only the officer in charge of
B. Make such inquiries as he thinks necessary and review a police station may be the subject of an investigation.
submissions made by the police officer before ordering the The Supreme Court ruled in Dilawar Singh v. State of Delhi,
investigation. (2007) 12 SCC 641, that even if a formal complaint has
• There was no set process in CrPC that had to be followed been filed and the police have conducted or are currently
before issuing an investigation order. But in Priyanka conducting an investigation that the aggrieved party
Srivastava v. State of U.P., the Supreme Court established believes is improper, the aggrieved party may still approach
some rules that are now included in the Sanhita. the Magistrate under Section 156(3) [now Section 175(3)
Previously, in the Code, applications were filed under of BNSS] and, if the Magistrate is satisfied, he may order a
Section 156(3), and the Magistrate was given power under proper investigation and take an appropriate action.
that section. In BNSS, applications are filed under Section In Sakiri Vasu v. State of Uttar Pradesh (2008), the Supreme
173(4), and Magistrates have been given the power to order Court ruled that the Magistrate also possesses incidental and
investigations under Section 175(3). (Mohd Yusuf v. Afaq implied powers that can be used to implement any express
Jahan (2006) 1 SCC 627). authority. There is no need to file a petition with the High
The police may be instructed to file a formal complaint by Court under Section 482 of the Code [now Section 528 of
the Magistrate. The police must file a formal complaint BNSS] or Article 226 of the Constitution when the Magistrate
before looking into the matter, even if the Magistrate does orders an investigation under Section 156(3) [now Section
not issue a clear directive to do so. 175(3) of BNSS] and the police officer either fails to
investigate or conducts an investigation incorrectly. Section
No revision shall be made if the Magistrate, in accordance 156(3) [now Section 175(3) of BNSS] gives the Magistrate
with Section 175(3), orders an investigation or directs the the incidental authority to issue a proper investigation or
filing of a complaint. A revision may be submitted, though, if another order of investigation.
the application is denied by the Magistrate. (In the State of
U.P. v. Priyanka Srivastava, 2015 6 SCC 287) As a result The Magistrate will not meddle in the investigation.
In Ishwar Pratap Singh v. State of U.P., (2018) 13 SCC 612,
Applications submitted under Section 156(3) [now Section the Supreme Court reaffirmed that no external body has the
173(4) of BNSS] must include an affidavit that the applicant authority to direct the investigation. Courts cannot supervise
has duly sworn. The Magistrate must verify the veracity and Investigations. Superior Courts can oversee investigations
correctness of the charges before issuing any orders. In Babu only in extraordinary situations, but that is not the same as
Venkatesh v. State of Karnataka (2022), the Supreme Court supervision.
decided that affidavits must be included with applications
submitted under Section 156(3) [now Section 173(4) of The Supreme Court ruled in Parvinderjit Singh v. State (U.T.
BNSS] in order to ensure accountability and prevent misuse of Chandigarh), (1996) 6 SCC 435, that the investigator’s role
of the process. is clearly defined and that the Court’s jurisdictional reach
to interfere with the investigation process is constrained.
Prerequisite for Prior Application: There must be previous Generally speaking, the Courts won’t get involved in a
applications under Sections 173(1) and 173(4) [formerly criminal investigation.

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The Supreme Court ruled in Chidambaram Directorate alleged offences in order to result in the filing of a formal
of Enforcement, AIR 2019 SC 4198, that the investigating complaint and the ensuing investigation. Put another way,
agencies alone are authorized to look into cognizable if the accusations set out in petition are ambiguous and
offenses and all of their phases, including questioning the unspecific about the alleged offenses, it cannot result in an
accused. As long as the investigating officer makes good order for the filing of a formal complaint and an investigation
use of the law, powers are unrestricted. The Court can only into the alleged offenses.
intervene and issue appropriate orders in the exercise of The Supreme Court ruled in Vinubhai Haribhai Malviya v.
its inherent authority under Section 482 CrPC [now Section State of Gujarat, (2019) 17 SCC 1, that theMagistrate has
528 of BNSS] if it is convinced that the investigating officer’s an extensive authority under Section 156(3) [now Section
authority is being misused, that the Court’s procedures are 175(3) of BNSS]. The Magistrate has all the authority
being abused, or that any of the provisions of the Code of required to ensure a thorough investigation of the matter,
Criminal Procedure [now BNSS] are not being followed. including incidental or implied powers. Section 173(2) of
The Supreme Court ruled in XYZ v. State of Maharashtra, the Code [now Section 193(3) of BNSS] gives the authority
AIR 2022 SC 3957, that the discretion granted in Section to order additional investigation following the submission
156(3) [now Section 175(3) of BNSS] can only be interpreted of the police report. Even at the post-cognizance stage, a
as the Magistrate’s duty to order the police to investigate Magistrate may exercise authority under Section 156(3)
when the Magistrate not only finds the commission of a [now Section 175(3) of BNSS].
cognizable offence alleged on a prima facie reading of the
complaint, but also when such facts are brought to the Application Against Public Servant
Magistrate’s attention that clearly indicates the need for Section 175(4) provides that any Magistrate empowered
a police investigation. Courts should not place additional under Section 210 may, upon receiving a complaint against
burden on the complainant and should encourage the police a public servant arising in the course of the discharge of his
to conduct an investigation, particularly in cases involving official duties, order investigation, subject to:
sexual harassment, sexual assault, or any other criminal • Receiving a report containing facts and circumstances of
allegation in which the victim may already be traumatized. the incident from the officer superior to him; and
The Supreme Court ruled in Usha Chakraborty & Anr. v. State • After consideration of the assertions made by the public
of West Bengal & Anr., 2023 SCC OnLine SC 90 that there is servant as to the situation that led to the incident so
no question about the requirement that the content of the alleged.
application meets the necessary requirements to attract the

Procedure for Investigation of a Cognizable The conjoint reading of Sections 157 and 159 BNSS clearly
postulates that the purpose of sending the occurrence
Case report is to avoid the possibility of improvement in the
Section 176(1) provides that if the officer in charge of a police prosecution story.
station has reason to suspect the commission of an offence The Supreme Court in Rabindra Mahto v. State of Jharkhand,
based on information received or otherwise, for which he AIR 2006 SC 887, observed that mere delay in sending the
is empowered to investigate, then he shall forthwith send report to the Magistrate does not discard the prosecution
a report of the same to the Magistrate empowered to take case. The delay should be explained, and in case of non-
cognizance of such offence upon a police report. Thereafter, explanation, the Court will tread cautiously.
he shall himself investigate or depute one of his subordinate
Further, the Supreme Court in Yogesh Singh v. Mahabir
officers. The report sent to the concerned Magistrate is
Singh, (2017) 11 SCC 222, held that it cannot be laid down
commonly called the “occurrence report.”
as an universal rule that whenever there is some delay in
This provision is designed to keep the Magistrate informed of sending an FIR to the Magistrate, the prosecution version
the investigation so that he may be able to give appropriate becomes unreliable. If the FIR was recorded promptly and
directions under Section 178 of the Sanhita. The purpose the investigation has started on the basis of the FIR, then in
of forthwith communication of the information is to check the absence of any prejudice to the accused, it cannot be
the possibility of manipulation. (State of Rajasthan v. Daud
Khan, (2016) 2 SCC 521).

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said that the investigation was tainted and the prosecution report every two weeks. The report did not have to be
story is unreliable. sent to the Magistrate in CrPC.
• Section 176 of the BNSS, 2023 now has a new subsection
Circumstances in Which the Police Need Not (along with its proviso) called sub-section (3) that allows
Investigate for the gathering of forensic evidence in cases where the
According to Section 176, there are two situations in which offender faces a sentence of seven years or more. The
the officer in charge of a police station may decide not to CrPC contained no such clause pertaining to the gathering
continue with the investigation: of forensic evidence.
• when information about the commission of the offense
has been provided against a specific individual by name Power to Require Attendance of Witnesses
and the case is not serious. (Section 176(1), Provision (a) Section 179 provides for the police’s power to require the
• if the police station’s commanding officer feels that there attendance of witnesses. Following are the essentials of this
isn’t enough justification to launch an investigation. section:
[Section 176(1), Proviso (b)] • An order requiring attendance must be in writing.
According to Section 176(2), in both of the aforementioned • The person whose attendance is required must appear
circumstances, the police must provide the Magistrate with to be acquainted with the facts and circumstances of the
the daily diary report every two weeks and explain why case.
they are not fully complying with the requirements of that
subsection. In the situation outlined in Clause (b) of the • The person resides within the limits of the police station
aforementioned Proviso, the officer must also promptly of the investigating police or adjoining police station.
notify the informant, if any, in accordance with any guidelines • No male person under the age of fifteen years or above
established by the State Government. the age of sixty years or a woman or a mentally or
physically disabled person or a person with acute illness
Use of Forensic Evidence shall be required to attend at any place other than the
Section 176(3) of the BNSS stipulates that upon receiving place in which such person resides.
information regarding a serious crime punishable by Second Proviso to Section 179(1) further states that if such a
imprisonment of seven years or more, the officer in charge person is willing to attend at the police station, such a person
of the police station is mandated to undertake two specific may be permitted to do so.
actions commencing from a date determined by the State It is the legal duty of every person to attend if so required by
Government within a five-year timeframe. the investigating officer. If such a person intentionally omits
͵ A forensic expert is required to examine the crime to attend, he shall be liable under Section 208 of Bharatiya
scene for the collection of evidence Nyaya Sanhita. Magistrates have no authority to issue
͵ The process of evidence collection must be a process to compel any person to attend before a police
documented via video using a mobile phone or any officer.
other electronic device.
Changes in Section 179
According to the proviso to Section 176(3), the State
Government must notify any other State that uses forensic • The First Proviso to Section 179(1) has lowered the
facilities in cases where none are available for the offense in maximum age of male witnesses whose presence will not
question until the facility is developed or made available in be required by the police to sixty years, from sixty-five
the State. years in the CrPC.
• In the First Proviso to Section 179(1) of BNSS, 2023, a new
Changes Introduced by BNSS category—a person with acute illness—has also been
• The BNSS, 2023’s Second Proviso to Section 176(1) has added, whose attendance will not be demanded by the
been amended to permit the recording of a rape victim’s police.
statement via audio-video electronic devices, such as a • Section 179(1) of BNSS, 2023 has a new proviso, the
mobile phone. The CrPC made no mention of recording Second Proviso, which states that if a person (as specified
the statement using audio-video electronic devices, such in the First Proviso) is willing to attend the police station,
as a mobile phone. they may be allowed to do so. CrPC did not offer this
• The BNSS, 2023’s Section 176(2) has been amended to option.
require police to send the Magistrate the daily diary

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Section 180 Deals With The Oral clause and that the areas covered by Article 20(3) and
Section 161(2) are essentially the same.
Examination of Witnesses by the Police
It provides that: Separate and True Record
• Any individual deemed to be familiar with the case’s facts Every individual whose statement the investigating officer
and circumstances may be subject to an oral examination records must have their statement made in a separate and
by an investigating officer or a police officer acting on the accurate record. It would be blatantly against Section 180(3)
officer’s request. if the investigating officer only recorded a joint statement.
• Such an individual is required to honestly respond to all However, such a violation will not make these individuals
questions about the case that are posed to him by such an incompetent witnesses or their testimony inadmissible. It
officer (with the exception of those that could potentially can only have an impact on how much weight is given to
expose him to criminal charges, penalties, or forfeiture). their evidence. (State of Bihar v. Tilkeshwar Singh, AIR 1956
SC 238).
• Any statement given to the investigating officer during
the course of the examination may be reduced to writing, A statement recorded under Section 161 [now Section 180 of
and if so, the officer is required to make a separate and BNSS] does not constitute evidence that the Court can rely
accurate record of the statement. upon to convict the accused in the absence of substantive
evidence, according to the ruling in Virender Singh v. State
Provisos to Section 180 of Haryana, (2017) 11 SCC 126. In addition, the Supreme
Court ruled in Harbeer Singh v. Sheesh Pal, (2016) 16 SCC
• The First Proviso to Section 180 provides that the
418, that a witness’s lack of statement recording does not
statement made under Section 180(3) may also be
always invalidate their testimony.
recorded by audio-video electronic means.
• The Second Proviso to Section 180 further provides that Language of Statement
the statement of a woman against whom an offence
Is it necessary to record the statement made under Section
under Sections 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76,
180 in the speaker’s native tongue? In Zahira Habibulla H.
77, 78, 79, and 124 of the Bharatiya Nyaya Sanhita, 2023
Sheikh and Others v. State of Gujarat and Ors., AIR 2004 SC
is alleged to have been committed or attempted, shall be
3114, the Supreme Court made it clear that the statement
recorded by a woman police officer or any woman officer.
made under Section 161 [now Section 180 of BNSS] does not
have to be recorded in the speaker’s native tongue.
Object
The goal of Section 180 is to gather evidence that could Preventive Detention and Statement
be used in the Court later. The statements recorded under
Whether the statement under Section 180 can be used for
Section 180 may be used as the basis for charges in a warrant
preventive detention? The Supreme Court in K. Aruna Kumari
trial or a session trial.
v. Govt. of A.P., (1988) 1 SCC 296, held that a statement
Any individual who might later be charged with the crime recorded under Section 161 of the Code [now Section 180 of
is included in the definition of “any person” in Section 180. BNSS] cannot be completely brushed aside for the purpose
A person may face punishment under Section 214 of the of preventive detention.
Bharatiya Nyaya Sanhita if, despite being legally required
to respond to all questions, he genuinely chooses not to. A Delay in Examination of Witness
person may be punished under Section 212 of the Bharatiya Is the prosecution doomed if the witness is not examined
Nyaya Sanhita if they provide a false response that they promptly enough under Section 180? The Supreme Court
either know to be false, believe to be false, or do not believe ruled in Sheo Shankar Singh v. State of Jharkhand, (2011) 3
to be true. SCC 654, that generally the prosecution’s case need to be
suspected by mere delay in the examination of a specific
Section 180 and Incriminating Questions witness. The Court may need to carefully examine and
When asked incriminating questions, the accused may assess the delayed testimony if an investigating officer has
choose to say nothing or refuse to respond. Article 20(3) good reason to think that a certain witness is significant but
the Constitution states that unequivocally that no one who chooses not to question him without providing a plausible
is charged with a crime may be forced to testify against explanation.
himself. In Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424,
the Supreme Court ruled that Section 161(2) [now Section
180(3) of BNSS] is a parliamentary gloss on the constitutional

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Pre-FIR Inquiry and Section 180 Effect of Taking Signature on the Statement
Does a person’s statement that is the subject of a pre-FIR In the State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, the
investigation (preliminary inquiry) qualify as a statement Supreme Court ruled that Section 162 [now Section 181 of
under Section 180 BNSS? The Supreme Court ruled in BNSS] does not stipulate that a witness’s testimony in Court is
Charan Singh v. State of Maharashtra, (2021) 5 SCC 469 that rendered inadmissible if it turns out that the witness signed
a statement made by someone being investigated before the statement that was recorded during the investigation at
filing a formal complaint cannot be considered a statement the investigating officer’s request. It only cautions the Court
under Section 161 CrPC [now Section 180 of BNSS]. Only and demands that the evidence be carefully examined.
the disclosure of a cognizable offense can be determined by The police officer’s statement made during the investigation
such a statement. is not subject to cross-examination or a sworn testimony.
As a result, such claims are not admissible as substantive
Evidentiary Value of Statements Made to evidence. In Dipakbhai Jagdishchandra Patel v. State of
Police During Investigation Gujarat, (2019) 16 SCC 547, the Supreme Court noted that
the prohibition of Section 162 [now Section 181 of BNSS]
According to Section 181(1), no statement given to a police only applies from the beginning of the investigation until
officer during an investigation may be written down and its conclusion. The bar of Section 162 [now Section 181 of
signed by the individual who made it. It goes on to say that BNSS] will not apply in the event that a statement is made
no such statement, record, or portion of a statement or prior to the start of the investigation.
record may be used in any way during an investigation or
All of the statements made by witnesses during an
trial pertaining to any crime that is being looked into at the
investigation are included in the definition of “statement”
time the statement is made.
that is referenced in Sections 180(3) and 181. It doesn’t mean
just one thing. Statements made in violation of Sections
180(3) and 181 are not admissible in Court, regardless of
whether they constitute admission or confession.

Contradictions and Omissions investigation are considered to be a part of the statement

According to Section 181’s explanation, a statement and may constitute contradiction.
mentioned in Section 181(1) may be contradicted if a
fact or circumstance is left out. Not all omissions are
Proviso to Section 181
contradictory. The only omission that is significant in the Proviso to Section 181(1) applies to specific situations in
context is a contradiction. It is a matter of fact as to whether which the statements may be used for a restricted purpose.
any omissions constitute contradictions. The Supreme According to the provisions of Section 148 of Bharatiya
Court ruled in Tehsildar Singh v. State of U.P., AIR 1959 SC Sakshya Adhiniyam, if a witness is called as a prosecution
1012, that substantial omissions made by police during an witness and their statements have been reduced to writing

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and duly proven (proved to be made by the witness), the Contradiction

accused may use them, and the prosecution may, with the The term “contradiction” has a wide connotation. It takes
Court’s approval, contradict the witness. within its ambit all the material omissions. Under the
To attract the Proviso, the following elements are necessary: circumstances of a case, a Court can decide whether there
• The witness must have been called by the prosecution. is one such omission that would amount to contradiction.
• The witness must have made a statement to the police “Contradiction” means setting one statement against
officer. another and not the setting up of a statement against
nothing at all.
• Such a statement must have been reduced into writing.
• Such a statement must have been proved. Use of Statement in Any Other Case
According to Section 181(2), 26(a) and Section 23(2) of the In Vinay D. Nagar v. State of Rajasthan, AIR 2008 SC 1558,
Bharatiya Sakshya Adhiniyam are unaffected by Section the Supreme Court explained that any statement made to a
181(1). Statements given to the police during an investigation police officer during an investigation under Chapter XII [now
are not permitted to be used for corroboration under this Chapter XIII of BNSS] is prohibited from being used by Section
section. The premise of this prohibition is that the police 162 CrPC [now Section 181 of BNSS]. However, according to
cannot be relied upon to accurately record the statements, the specific language of this section, this prohibition only
and the prosecution cannot rely on the statements because applies in cases where the statement is intended to be used
they may be self-serving. “at any inquiry or trial” in relation to any crime that was
According to the Supreme Court’s ruling in Parvat Singh being investigated at the time it was made. The prohibition
v. State of M.P., (2020) 4 SCC 33, statements made in of Section 162 [now Section 181 of BNSS] will not apply if a
accordance with Section 161 of the Code [now Section 181 statement made to a police officer during an investigation
of BNSS] are not admissible as evidence and cannot be used under Chapter XII [now Chapter XIII of BNSS] is sought to be
to convict the accused. They are limited to demonstrating used in any proceeding, inquiry, or trial regarding an offense
inconsistencies or omissions. other than the one that was being investigated at the time
the statement was made.
Inquest and Section 181
According to the ruling in Razik Ram v. Jaswant Singh Recording of Confessions and Statements
Chouhan, (1975) 4 SCC 769, the Supreme Court ruled that Who Can Record Confessions and Statements?
Section 162 [now Section 181 of BNSS] would inhibit even Judicial Magistrates, whether having jurisdiction or not, are
statements of a witness that was recorded by the investigator empowered to record confessions and statements.
during the inquest under Section 174 [now Section 194 of When Can Confessions and Statements Be Recorded?
BNSS]. This clause is based on the sound principle of public
Confessions and statements can be recorded in the course
policy that witnesses should be allowed to speak candidly
of the investigation or at any time afterwards but before the
during the trial.
commencement of inquiry or trial.
Use of Statement by Court
In the 1974 case of Raghunandan v. State of U.P., 4 SCC 186, Section 183 Recording of Confessions and
the Supreme Court ruled that Section 162 [now Section 181 Statements
of BNSS] only applies to the use of statements by the parties.
Confessions and statements made during an investigation
Section 165 of the Indian Evidence Act [now Section 168 of
may be recorded under Section 183. The prohibition in
the BSA] permits a Court to ask any question, regardless of
Section 181 does not apply to statements recorded under
whether it is a contradiction or a corroboration. Section 165
Section 183. During the trial stage, these statements that
of the Indian Evidence Act [now Section 168 of the BSA] is
were recorded under Section 183 may be used for cross-
not governed by Section 162 [now Section 181 of the BNSS].
examination, contradiction, and confirmation. Convictions
The limitations imposed by Section 162 of the Code [now
may also be based on confessions made under this section,
Section 181 of BNSS] are therefore not applicable, and the
which are regarded as substantial pieces of evidence.
Court may use prior statements when questioning a witness
Additionally, it eliminates the prohibition outlined in Section
under Section 165 of the Evidence Act [now Section 168 of
23(2) of the Bharatiya Sakshya Adhiniyam .
BSA] or when examining a person as a Court witness under
Section 311 of the Code [now Section 348 of BNSS].

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Who Shall Record Statements and • The Magistrate needs to be convinced that the confession
Confessions under Section 183? is being given willingly and must be satisfied. [Section
183(2)]
Section 183 states that only a Magistrate of the district where
The confession is given voluntarily:
the information regarding the commission of an offense has
been registered, regardless of whether he has jurisdiction • The accused must be questioned about the custody from
over the case, may record a statement or a confession. which he was taken and the treatment he received while
in that custody. The accused should be questioned about
According to the first proviso of Section 183(1), confessions
how he sustained any injuries if they are discovered on
or statements may also be recorded on audio-video
him.
electronic devices while the accused’s advocate is present.
A police officer who has been granted the authority of • Following warnings, the Magistrate should allow the
a Magistrate by any law will not be deemed competent confessional party enough time to think and contemplate
to record confessions, as stated in the Second Proviso of so that any potential police influence is removed from his
Section 183(1). mind (Sarwan Singh Rattan Singh v. State of Punjab, AIR
1957 SC 637).
According to a modification of Section 183(1) of the BNSS,
2023, confessions or statements may be recorded by any • If the individual is coming from the police custody, he
Magistrate of the district where information regarding should typically be placed in judicial custody prior to the
the commission of an offense has been registered. It was confession being recorded. The goal of this exercise is to
not expressly stated in the CrPC that the confessions or ensure that he is totally unaffected by the police.
statements in which the details of the offense are recorded • To establish a free atmosphere, the Magistrate should
would be recorded by the District Magistrate. order the removal of any handcuffs the accused may be
wearing and the expulsion of any police officers who may
Object of Recording Statement have any influence over the accused.
The Magistrate is required to get all the information witness • In the event that the accused refuses to make a
wants to share when recording a statement under Section statement, he should be guaranteed protection from
183. Therefore, in order to gather as much information torture or coercion by the law enforcement or similar
as possible about the case, the Magistrate should ask the parties. Furthermore, if the accused indicates that he is
witness clarifying questions. The object of recording a unwilling to make a confession when presented before
statement under Section 183 is twofold: the Magistrate, Section 183(3) forbids remanding him to
• To deter the witness from changing his stand by denying police custody.
the contents of a previously recorded statement. • The accused should never be returned to police custody
• To escape the bar of Section 181 of BNSS, a statement after making a confession; instead, he should be placed in
under Section 183 can be used for both corroboration judicial custody.
and contradiction. • The accused must be informed of his constitutional rights
under Article 22 of the Constitution by the Magistrate.
Manner of Recording Confession • The Magistrate will not permit the detention of an
To guarantee that only voluntary and free confessions are individual in police custody if they are unwilling to
recorded under this section, the confession recording confess. [Part 183(3)]
process is more complex. Section 183’s provisions serve as
• According to Section 183(4), a confession must be
safeguards against coerced confessions.
documented using the format specified in Section 316
In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, the of the Sanhita. Therefore, his entire confession and
Supreme Court ruled that the Magistrate should appropriately responses will be fully documented in the Court’s language
question the accused to extract any information he is willing or the language used by the accused when making the
to divulge before recording the confession. Confessions confession. The accused must be read over the contents
need to be carefully and cautiously documented. of the confession in a language he can understand, and it
The Magistrate must ensure that the requirements of Section must be made without taking an oath.
183 are fully satisfied. Such requirements are as follows: • The accused must sign such a confession. Additionally, the
• Prior to recording any confession, the Magistrate must Magistrate will draft and sign a memorandum outlining
inform the confessor that: the confession’s contents.
͵ He is under no obligation to make the confession. • Following the recording of the confession, the Magistrate
͵ It could be used against him as evidence if he does. will forward the record to the Magistrate who will be
investigating or trying the case.

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The confession that is recorded following adherence to all so documented can be used as substantive evidence. This
of the previously mentioned precautions will have high is due to the fact that Section 79 of the Bharatiya Sakshya
evidentiary value and be admissible in Court. Adhiniyam presumes that such a record is authentic.
In Manoharan v. State, (2020) 5 SCC 782, the Supreme A non-confessional statement is not considered as a
Court noted that Section 164 of the Code [now Section 183 substantial evidence. Under Sections 160 or 148 of the
of BNSS] does not require that a confession or statement Bharatiya Sakshya Adhiniyam, the person who made the
be recorded in front of an advocate unless it is done so statement may use it to support or refute his testimony in
electronically using audio-video. The Magistrate is required Court if he is called as a witness during the trial.
to confirm that the statement was made voluntarily and to
make sure that all legal protections are strictly adhered to. Non-Compliance of Section 183
In case of non-compliance with Section 183, Section 509 of
Manner of Recording Statements BNSS provides that the statements and confessions made
According to Section 183(5), any statement made under will not be affected except in the following cases:
Section 183(1) that is not a confession must be recorded in • If such non-compliance has injured the accused in his
the way that is allowed for the recording of evidence, as the defense on the merits; and
Magistrate deems most appropriate for the particulars of
• He had not duly made the statement.
the case. The Magistrate also has the authority to administer
oath to the individual making the statement. Oral testimony is allowed under Section 509 to demonstrate
that the steps outlined in Section 183 were actually
The Supreme Court in State of Karnataka by Nonavinakere
followed. In the State of U.P. v. Singhara Singh, AIR 1964
Police v. Shivanna @ Tarkari Shivanna, (2014) 8 SCC 913,
SC 358, the Supreme Court ruled that an oral testimony
issued the following directions to all police stations in the
regarding confessions made under Section 164 [now Section
country in the case of rape victims:
183 of BNSS] is completely inadmissible as evidence. The
• Upon receipt of information relating to the commission confession’s contents can only be proven if they are made in
of an offence of rape, the investigating officer shall make accordance with the guidelines outlined in Section 164 [now
immediate steps to take the victim to any Metropolitan/ Section 183 of BNSS].
Judicial Magistrate for the purpose of recording her
Confessions recorded under Section 164 [now Section 183
statement under Section 164 of the Code [now Section
of BNSS] must adhere strictly and faithfully to the rules
183 of BNSS].
of Section 164(2) to 164(4) [now Section 182(2) to 183(4)
• A copy of the statement under Section 164 of the Code of BNSS], according to the ruling in Dara Singh v. Republic
[now Section 183 of BNSS] should be handed over to of India, (2011) 2 SCC 490. In addition to reducing the
the investigating officer immediately, with a specific confession’s evidentiary value, disregarding safeguards
direction that the contents of such statement should not raises questions about the confession’s voluntariness and
be disclosed to any person till the charge-sheet/report nature.
under Section 173 [now Section 193 of BNSS] is filed.
• The investigating officer shall record specifically the date Mandatory Recording of Statements
and the time at which he learned about the commission In cases of offenses under Sections 64, 65, 66, 67, 68, 69, 70,
of the offence of rape and the date and time at which he 71, 74, 75, 76, 77, 78, 79, and 124 of the Bharatiya Nyaya
took the victim to a Metropolitan/Judicial Magistrate as Sanhita, 2023, the Judicial Magistrate is required by Section
aforesaid. 183(6)(a) to document the statement of the individual
• If there is any delay exceeding 24 hours in taking the against whom the offense has been committed as soon as
victim to the Magistrate, the investigating officer should the police are notified of the offense.
record the reasons for the same in the case diary and The first proviso to Section 183(6)(a) states that a woman
hand over a copy of the same to the Magistrate. Magistrate must, to the greatest extent possible, record such
a statement; if she is not available, a male Magistrate must
Admissibility and Evidentiary Value of do so in front of a woman.
Statements and Confessions under Section 183 Second Proviso to Section 183(6)(a): The Magistrate must
If the conditions of Section 183 of the BNSS are properly document the statement of the witness that the police officer
met, all of the confessions and statements made under that brought before him in cases involving offenses that carry a
section can be used as evidence. sentence of ten years or more in prison, life imprisonment,
Even though the Magistrate who made the record is not or death.
called as a witness to formally prove it, a confession that is

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Third Proviso to Section 183(6)(a): The Magistrate must enlist • The exact time of commencement and completion of the
the help of an interpreter or special educator to record the examination.
statement, which will be videotaped, if the individual making Within seven days, the registered physician must send the
the statement is temporarily or permanently mentally or report to the investigating officer, who will then forward it
physically disabled. to the Magistrate mentioned in Section 193 as one of the
Fourth Proviso to Section 183(6)(a): If the individual documents mentioned in Section 193(6)(a).
making the statement is physically or mentally disabled, According to the CrPC, the medical examiner must send
either temporarily or permanently, their statement must the report of the victim’s medical examination as soon as
be recorded using audio-video electronic means, ideally possible; however, there was no deadline for the medical
a mobile phone, with the help of a special educator or professional to do so. However, according to BNSS Section
interpreter. 184(6), such a report must be sent within seven days.
This clause makes the process more technologically
sophisticated and inclusive by introducing changes not Procedure When Investigation Cannot be
found in the CrPC.
Completed in Twenty-four Hours
A new proviso has been added to Section 183(6)(a) of BNSS,
2023 as its First Proviso. It states that a woman Magistrate, A police officer cannot hold an arrested person for longer
if possible, must record the statement of a victim of an than is reasonable, and that period cannot be more than 24
offense listed in Section 183(6)(a) of BNSS, 2023, or a male hours, as stated explicitly in Section 58. Only after receiving
Magistrate in the presence of a woman. The CrPC contained a special order from the Magistrate in accordance with
no such clause. Section 187 may the police officer hold the individual for an
extended period of time in order to conduct an investigation.
Another recently added clause is the Second Proviso to
This clause aims to ensure that the arrested individual is
Section 183(6)(a) of the BNSS, 2023, which states that the
brought before the Magistrate as soon as possible.
Magistrate must record the witness’s statement when the
police officer brings it before him in cases involving offenses In the case of Uday Mohanlal Acharya v. State of Maharashtra,
punishable by death, life imprisonment, or ten years or more 2001, 5 SCC 453, the Supreme Court ruled that Section
in prison. The CrPC contained no such clause. 167, which is now Section 187 of the BNSS, is an addition
to Section 57 of the Code, which is now Section 58 of the
BNSS. The purpose of making the accused appear before
Medical Examination of Victim of Rape
a Magistrate is to allow the Magistrate to determine that
[Section 184] custody is required and to give the accused the opportunity
Section 184 permits a registered medical professional to to make any representations that he may want to make.
examine a rape victim medically with the consent of the Section 187 lays down the procedure when an investigation
victim or of a person authorized to consent on her behalf. cannot be completed in 24 hours and the accused person is
Additionally, it stipulates that within 24 hours of learning in custody.
of the offense, the woman in question must be taken to a
licensed medical professional. Condition Required to Invoke Section 187
Section 184(2), (3), (4), and (5) state that the report should • The person is arrested and detained in custody;
contain the following particulars: • It must appear that the investigation cannot be completed
• Name and address of the woman and of the person by within a period of 24 hours of his arrest;
whom she was brought. • There are grounds for believing that the accusation or
• Age of the woman. information against him is well-founded;
• Description of material taken from the person of the • The officer-in-charge of a police station or the
woman for DNA profiling. investigation officer not below the rank of a Sub Inspector
• Marks of injury, if any, on the person of the woman. must forward the accused before the nearest Magistrate
along with the case diary.
• The general mental condition of the woman.
• The Judicial Magistrate to whom the accused is
• Other material particulars in reasonable detail.
forwarded, whether he has or not the jurisdiction to try
• Reasons for each conclusion arrived at. the case, may authorise the the detention of the accused
• Consent of the woman or person competent on her either in police-custody or in judicial-custody subject to
behalf. the following conditions –

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͵ Take into consideration whether such a person has not for a duration longer than 15 days is required and there are
been released on bail or his bail has been cancelled, sufficient grounds for it.
͵ For a term not exceeding fifteen days in the whole, or ͵ For a total period not exceeding 90 days where the
in parts at any time during the initial forty days out of offence is punishable with death, life imprisonment or
detention period of sixty days in case of investigation imprisonment for a term of not less than 10 years; or
of offence punishable with imprisonment for less than ͵ For a total period not exceeding 60 days (where the
ten years. offence is any other offence).
͵ Sixty days out of detention period of ninety days in The 90-day or 60-day statutory period must be calculated
case of investigation of an offence punishable with from the day the Magistrate approves an accused person’s
death or imprisonment for life or a term of ten years detention. According to Section 187(3), the accused must be
or more. released on bail if the investigation is not finished within 90
• If further detention is unnecessary, such Magistrate may or 60 days, provided that he is willing to do so.
order the accused to be forwarded to the Magistrate The Supreme Court ruled in Uday Mohanlal Acharya v.
having jurisdiction to try the case. State of Maharashtra, (2001) 5 SCC 453, that the accused
• An order for detention beyond 15 days by a Magistrate must be deemed to have exercised his right under Section
having no jurisdiction is illegal. 167(2) [now Section 187(3) of BNSS] as soon as he files an
Over the course of 15 days, the type of custody can change application for bail. The Court ruled that the accused has an
from judicial to police custody and vice versa. After that time, indefeasible right to be released on bail after the 90 or 60
the accused cannot be placed in police custody; instead, days, as the case may be,the statutory period hase passed
they can only be held in judicial custody or any other type of because the investigating agency failed to complete the
custody that the Magistrate orders. investigation within the allotted time. The accused is also
entitled to be released on bail if he is willing to do so and
The Supreme Court ruled in Manubhai Ratilal Patel v. State
provides the bail as instructed by the Magistrate.
of Gujarat and Ors, AIR 2013 SC 313, that ordering an
accused person to be placed under remand is essentially a In Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616, the
judicial function. When directing the accused to be detained, Supreme Court ruled that a chargesheet filed later cannot
the Magistrate is not acting in an executive capacity. The negate an indefeasible right to bail once an application
Magistrate must determine for himself if the materials for bail has been made under this section. Additionally, it
presented to him warrant the remand. The Magistrate cannot be defeated by failing to dispose of the application or
is required to use his judgment and refrain from issuing a by disposing of it incorrectly.
remand order in an automated or robotic fashion. In M. Ravindran v. The Intelligence Officer, the Supreme Court
further explained that if the accused has applied for default
Police remand bail, the right to be released on it remains enforceable even
In Satyajit Ballubhai Desai v. State of Gujarat, (2014) 14 if the prosecution later files a chargesheet or report asking
SCC 434, the Supreme Court ruled that granting an order of the Court to extend the time. However, the right to default
police remand ought to be an exception rather than a rule. bail would be terminated if the accused does not apply for
The investigating agency must present a compelling case and it when it becomes available to him and a chargesheet or
persuade the Magistrate that the police authorities could report requesting an extension of time is later submitted to
not conduct an investigation without police custody. the Magistrate.
According to the Supreme Court’s ruling in Serious Fraud
When a Judicial Magistrate is Not Available? Investigation Office v. Rahul Modi (2022), the indefeasible
According to Section 187(6), the accused must be sent to right to bail under Section 167(2) CrPC [now Section 187(3)
the nearest Executive Magistrate, who has been granted of BNSS] only occurs when the charge sheet is not filed within
the authority of a Judicial Magistrate or Metropolitan the allotted time. Under Section 167(2) CrPC [now Section
Magistrate, in the event that a Judicial Magistrate is not 187(3) of BNSS], default bail may be granted even if the
available. The accused may be detained for a total of seven Magistrate does not take cognizance. The accused remains
days if the Executive Magistrate approves it. under the Magistrate’s custody until the Court trying the
crime takes cognizance, at which point it takes custody of
Maximum Period of Detention Under Section the accused for the purpose of remand.
187 and Default Bail
According to Section 187(3), the Magistrate may only
authorize judicial custody if he determines that the detention

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Cancellation of Default Bail the date of remand should not be taken into account when
In accordance with Chapter XXXV, the bail granted under calculating the period for default bail.
Section 187(3) will be considered granted. A person released In the cases of State of Maharashtra v. Bharati Chandmal
under Section 187(3) is subject to the provisions of Chapter Verma, (2002) 2 SCC 121, CBI v. Anupam Kulkarni, (1992) 3
XXXV. SCC 141, and Chaganti Satyanarayana and Ors v. State of
According to Explanation I, if the accused does not provide A.P., AIR 1986 SC 2130, the Supreme Court ruled that the
bail, he will remain in custody. Once granted under this 90-day or 60-day period would begin to run from the date
proviso, bail is valid until it is revoked, and the Court’s receipt of remand rather than the date of arrest. Detention under a
of the charge sheet is not a reason to revoke bail. Babalal Magistrate-issued authorization cannot include the time the
Desai v. State of Maharashtra, (1992) 4 SCC 272; Sanjay Dutt accused was in the custody of a police officer exercising his
v. State, (1994) 5 SCC 410, 415). authority under Section 57 (now Section 58 BNSS).

The Supreme Court recently reaffirmed in Kamlesh The Supreme Court ruled in Enforcement Directorate v.
Choudhary v. State of Rajasthan, (2021) that a defendant Kapil Wadhawan, 2023 SCC OnLine 972, that the 60/90
released on default bail cannot be arrested again after the day remand period specified under Section 167 CrPC [now
police file a charge sheet. The receipt of the charge sheet in Section 187 of BNSS] should be calculated starting on the
Court cannot be a reason for bail cancellation on its own; the day a Magistrate authorizes remand. If the remand date is
prosecution may request bail cancellation on the grounds not included, the remand period will go beyond the 60 or
specified by law. 90 days that are allowed, leading to unjustified detention
for longer than what is allowed by Section 167 CrPC [now
Section 439(2) of the Code [now Section 483(3) of BNSS] Section 187 of BNSS]. The accused would be eligible for
allows for the cancellation of default bail granted under default bail if the chargesheet or final report was filed on or
Section 167(2) [now Section 187(3) of BNSS], according to after the 61st or 91st day. In other words, the accused has an
the Supreme Court’s ruling in Venkatesan Balasubramaniyan unassailable right to default bail as soon as the allotted 60 or
v. The Intelligence Officer, D.R.I., Bangalore. 90 day remand period ends.
Section 187(3) clarifies that every person released on bail
under Section 187(3) shall be deemed to be so released under Duty of the Magistrate
Chapter XXXV. If a person is illegally or erroneously released In Hussainara Khatoon (5) v. State of Bihar, (1980) 1 SCC
on bail under Section 187(3), his bail can be cancelled by 108, the Supreme Court ruled that the Magistrate has an
passing an appropriate order under Section 483(3). obligation to advise the accused of his right to be released
In State through CBI v. T. Gangi Reddy @ Yerra Gangi Reddy, on bail under this clause.
2023 (123) ACC 706 (SC), Supreme Court held that in a case According to Section 187(4), unless the accused is brought
where an accused is released on default bail under Section before the Magistrate in person, the Magistrate cannot
167(2) CrPC [now Section 187(3) of BNSS], and thereafter permit the accused to be held in police custody. However,
on filing of the chargesheet, a strong case is made out if the accused is produced in person or by electronic audio-
and on special reasons set out from the chargesheet that video means, the Magistrate has the authority to prolong
the accused has committed a non-bailable crime, and the detention in judicial custody.
considering the grounds set out in Sections 437(5) [now
Section 187(5) states that unless the High Court has given
Section 480(3) of BNSS] and Section 439(2) [now Section
him a special authority, a Judicial Magistrate Second class
483(3) of BNSS], his bail can be cancelled on merits, and the
cannot authorize detention in the police custody. Explanation
Courts are not precluded from considering the application
I states that the accused will remain in custody if he fails to
for cancellation of the bail on merits.
post bail.
Computation of Period of 90 Days or 60 Days According to Explanation II, the accused person’s signature
The Supreme Court referred to the issue of whether the day on the order authorizing their detention or the Magistrate’s
of remand should be included or excluded when calculating certified order requiring their production via audio-video
the 90 or 60-day period for default bail to a larger bench electronic means can be used to confirm their production
in Enforcement Directorate v. Kapil Wadhawan (2021). The if there is any question as to whether they were brought
Court pointed out that in the cases of the State of M.P. v. before the Magistrate as required by Section 187(4).
Rustom and Ors, 1995 (Supp) 3 SCC 221, Ravi Prakash Singh A woman under the age of eighteen years may be held in the
v. State of Bihar, (2015) 8 SCC 340, and M. Ravindran v. custody of a recognized social institution or remand home in
Intelligence Officer, Director of Revenue, it was decided that accordance with the first proviso of Section 187(5).

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Second Proviso to Section 187(5) further provides that no Government or the State Government, according to the
person shall be detained otherwise than in a police station Second Proviso to Section 187(5) of the BNSS, 2023. It is a
under police custody or in a prison under judicial custody or recently added clause. The CrPC contained no comparable
a place declared as prison by the Central Government or the clause.
State Government.
Release of Accused When Evidence Deficient
Stoppage of investigation According to Section 189, the officer in charge of the police
According to Section 187(9), the Magistrate may order the station will release the accused upon his execution of a bond,
termination of any additional investigation into the offense with or without sureties, and instruct him to appear as and
if the case is a summons case and the investigation is not when required before the Magistrate with the authority to
completed within six months of the date of arrest. However, take cognizance of the offense if, after investigation, it seems
the Magistrate will not issue an order to halt further that there is not enough evidence or a reasonable basis for
investigation if the investigating officer convinces him that it suspicion to support sending the accused to the Magistrate.
is necessary to continue the investigation past the six-month
mark for special reasons and in the interest of justice. Cases to be Sent to Magistrate When
Evidence is Sufficient
Other Provisions of Remand According to Section 190, the officer in charge of the
In addition to Section 187, Sections 220 and 346 allow for police station must forward the accused under custody to
the remand of an accused individual to judicial custody. The a Magistrate who has the authority to take cognizance of
Magistrate will commit the case to the Court of Session if the offense upon a police report, try the accused, or commit
the offense can only be tried by the Court of Session. The him for trial if an investigation reveals that there is sufficient
accused will be remanded to custody until the Court of evidence or the aforementioned reasonable ground. If
Session has made the commitment, subject to the bail the offense is bailable and the accused is able to provide
provisions. (Section 232(a) or (b) will remand the defendant security, the officer must obtain security from the accused
to custody until the trial is over. for his appearance before the Magistrate on a designated
Similarly, under Section 346(2), if the Court postpones or day and for his daily attendance before the Magistrate until
adjourns any inquiry or trial after taking cognizance or after otherwise instructed.
the trial has begun, it may remand the accused, if he is The police officer will obtain security from the accused if
already in custody, by warrant. However, under this section, they are not in the custody so that they can appear before
a remand to custody cannot last longer than 15 days at a the Magistrate, and the Magistrate who receives the report
time. will not reject it on the grounds that the accused is not in
This clause has undergone some modifications. The BNSS, custody.
2023’s Section 187(2) has been amended to state that the This clause has been amended to include a new proviso. A
Magistrate to whom an accused person is sent under this new proviso has been added to Section 190(1) of the BNSS,
section may only remand the accused to custody after 2023, in the form of the First Proviso. The CrPC contained no
considering whether the accused person has been released such corresponding provision.
on bail or if his bail has been revoked. The CrPC contained no
In Union of India v. Prakash Hinduja, (2003) CrLJ 3117 (SC),
such requirement.
the Supreme Court noted that the officer in charge of the
Additionally, Section 187(2) of the BNSS, 2023 has been police station makes the decision about whether there is
amended to state that the accused may be held in custody enough evidence or a good reason to send the case to the
for a maximum of fifteen days in total, or in parts at any Magistrate; the Magistrate has no say in the matter.
point during the first forty or sixty days of the sixty or ninety
The Supreme Court ruled in Siddharth vs. State of Uttar
days of detention, as specified in Section 187(1). It was not
Pradesh, (2020) 17 SCC 90 that the officer-in-charge is not
explicitly stated in the CrPC that remand could be granted for
required to arrest every accused person at the time the
the entire 15-day period or just a portion of it, nor how long
charge sheet is filed under Section 170 of the Cr.PC [now
the detention would last. The phrase “medium of electronic
Section 190 of BNSS]. The Court determined that some trial
video linkage” used in the CrPC has been replaced with
Courts’ practice of requiring an accused person’s arrest as a
“audio electronic means” in Section 187(4) and Explanation
necessary formality before taking their charge sheet on file
II to Section 187(5) of the BNSS, 2023.
is out of place and goes against the very purpose of Section
No one may be detained in any other location than a 170 of the Criminal Procedure Code [now Section 190 of the
police station under police custody, a prison under judicial BNSS].
custody, or a location designated as a prison by the Central

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Case Diary or Police Diary officer is responsible for forming an opinion once the
investigation is complete. The police report he submits is
Section 192 stipulates that a “case diary” or “police diary” known as a charge-sheet or challan if he believes that an
detailing the events of an investigation must be kept. The offense has been committed. The police report he submits
case journal needs to be kept up to date on a daily basis, is referred to as a final report or closure report if he
with daily entries of the investigation’s activities. concludes that no offense has been committed. According
Object: The purpose of keeping such a diary is to allow the to Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117, the
Court to know what information the investigating officer Magistrate cannot force the police officer to turn in the
gathered on a daily basis and what investigative paths were charge sheet.
taken. It is intended to uphold transparency and fairness in According to Section 193(1), all investigations must be
the investigation. completed as soon as possible. For offenses under Sections
Witness statements taken during the investigation under 64, 65, 66, 67, 68, 70, or 71 of the Bharatiya Nyaya Sanhita
Section 180 must be included in the case diary, which must and Sections 4, 6, 8, or 10 of the POCSO Act, an investigation
be a volume with proper pagination, according to Sections may be completed within two months of the date the First
192(2) and 192(3). Information Report was filed, according to Section 193(2).
The case diary may be sent to the criminal Court and used According to Section 193(3)(i), the officer in charge of a
to aid in the investigation or trial, but it will not be used as police station forwards the police report to the Magistrate,
evidence in the case. The right to request a case diary does who has the authority to take cognizance of the offense.
not belong to the accused or his representative. Even they A police report must state the following particulars:
have no right to view it just because the Court brought it
• Name of the parties
up. The police officer who made them may use it to jog his
memory, or the Court may use it to refute the police officer. • Nature of information
The accused has the right to use that portion of the case • Names of the persons acquainted with the circumstances
diary in line with Sections 145 or 164 of the BSA, and the of the case
provisions of Sections 148 or 164 of the BSA will apply • Whether any offence appears to have been committed
whenever the Court uses it to refute or the police officer and if so, by whom
uses it to refresh memory.
• Whether the accused has been arrested
The Supreme Court outlined the parameters of case diary
• Whether the accused has been released on his bond or
use in Shamshul Kanwar v. State of U.P., AIR 1995 SC 1748.
bail bond and if so, whether with or without sureties
The case diary, according to the Court, is merely a log of the
investigating officer’s daily investigations. The diary may be • Whether he has been forwarded in custody under Section
used as a tool by the Court during the trial or investigation, 190
but not as evidence. According to Section 145 of the Indian • Whether the report of the medical examination of the
Evidence Act [now Section 148 of the BSA], the accused is woman has been attached where the investigation relates
only permitted to consult the diary of the police officer who to an offence under Sections 64, 65, 66, 67, 68, 70, or 71
made the entries and uses it to refresh his memory or refute of the Bharatiya Nyaya Sanhita, 2023
such witnesses. • Sequence of custody in case of electronic device
In Balakram v. State of Uttarakhand, (2017) 7 SCC 668, According to Section 193(3)(i), the police officer must
the Supreme Court ruled that the accused’s right to cross- notify the progress of the investigation to the victim or the
examine a police officer based on entries in the police diary informant within ninety days using any method, including
is severely restricted, and even then, only when the officer electronic communication.
uses the diary to refresh his memory. This right is subject
In H.S. Bains v. State (U.T. of Chandigarh), (1980) 4 SCC
to Sections 145 and 161 of the Indian Evidence Act [now
631, the Supreme Court ruled that the Magistrate is not
Sections 148 and 164 of the BSA]. Section 172 of the CrPC
constrained by the findings of the police. Whether it is a
[now Section 192 of the BNSS] does not allow the accused,
charge sheet or a final report, the Magistrate may disagree
the prosecution, or the Court to use the police diary to refute
with the police report.
any witness who is not a police officer.
In Ramswaroop Soni v. State of M.P., AIR 2019 SC 3801, the
Report of Police Officer on Completion of Supreme Court reaffirmed that a Magistrate cannot order
Investigation the police to file a charge sheet after receiving a closure
report. Such a course is completely unsustainable.
The police officer’s report following the conclusion of the
investigation is covered in Section 193. The investigating In Central Bureau of Investigation v. Kapil Wadhawan & Anr.,
2024 INSC 58, the Supreme Court ruled that it makes no

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difference whether or not an additional investigation under to the scheme of the Criminal Procedure Code [now BNSS],
Section 173(8) [now Section 193(9) of BNSS] is ongoing once and it may as such violate the rights of the accused as well
the Court is satisfied about the commission of an offense as the victim and/or even the investigating agency. Putting
based on the evidence presented with the charge sheet and the FIR on the website cannot be equated with putting the
takes cognizance of the alleged offense committed by the chargesheets along with the relevant documents in the
accused. The pending investigation into the other accused or public domain and the websites of the State Governments.
the need to produce certain documents that were unavailable
at the time the charge sheet was filed would not invalidate Options Available to Magistrate When Police
the charge sheet or grant the accused the right to default Report is Filed
bail on the grounds that the charge sheet was incomplete or • Accept the charge sheet and proceed to take cognizance
that it was not filed in accordance with Section 173(2) of the under Section 210(1)(b).
Cr.P.C. [now Section 193(3) of the BNSS].
• Decide to reject the charge sheet and drop the
Whether Chargesheet and Other Documents proceedings.
are Public Documents? • Call for protest petition:
In Saurav Das v Union of India, (2023), the Supreme Court ͵ The Magistrate may reject the protest petition and
held that a copy of the chargesheet along with the necessary drop the case.
documents cannot be said to be public documents within ͵ The Magistrate may treat the protest petition as
the definition of public document as per Section 74 of the a complaint and take cognizance under Section
Evidence Act [now Section 74(1) of BSA]. The Court held that 210(1)(a).
if all the chargesheets and relevant documents produced • Direct further investigation before taking cognizance
along with the chargesheets are put in the public domain or under Section 175(3).
on the websites of the State Governments, it will be contrary

Options Available to the Magistrate When • Call for protest petition:

Final Report or Closure Report is Filed ͵ The Magistrate may reject the protest petition and
• Decide to accept the final report and drop the proceedings. drop the case.
• Decide to reject the final report: ͵ The Magistrate may treat the protest petition as
a complaint and take cognizance under Section
͵ Proceed to take cognizance under Section 210(1)(b).
210(1)(a).
͵ Direct further investigation under Section 175(3).

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The complainant or informant should be given the chance to documents so that the accused can receive them as required
submit a protest petition if the Magistrate decides to drop by Section 230, subject to Section 193(7).
the case (whether it be in the charge sheet or final report).
Commissioner of Police v. Bhagwant Singh, 1985, 2 SCC 537. Further investigation
It becomes necessary to notify the informant and give them Section 193(9) allows the investigating officer to conduct
a chance to be heard in the case if the Magistrate determines an additional research. The investigating officer is free to
that there is not enough justification to continue and decides carry out additional research even in the absence of the
to end the proceedings. Commissioner of Police v. Bhagwant Magistrate’s order. It should be mentioned that BNSS does
Singh, 1985, 2 SCC 537. not require the police to obtain the Magistrate’s prior
The Supreme Court reaffirmed in Sanjay v. Jariwala, (2007) consent before conducting additional investigations on their
13 SCC 71, that the Magistrate must notify the informant own.
if he chooses not to take cognizance. The informant has It should be mentioned that this clause has undergone a
the right to file an objection, also referred to as a “protest minor modification. Section 193(9) has been amended with
petition,” after receiving the notice. a new proviso that states that additional investigation can
only be conducted with the consent of the Court trying
Options Available to the Magistrate on the offense after the trial has begun. That being said, the
Protest Petition stance is unchanged with regard to the idea of additional
investigation before the trial starts.
• The Magistrate may reject the protest petition and drop
the case. In Ram Lal Narang v. State (Delhi Administration), (1979)
2 SCC 322, the Supreme Court was asked if the police
• The Magistrate may treat the protest petition as a
needed the Magistrate’s official consent before conducting
complaint and take cognizance under Section 210(1)(a).
additional investigation. However, the Supreme Court ruled
• The Magistrate may direct further investigation under that it is wise for the investigating officer to obtain formal
Section 175(3). permission from the Magistrate as a matter of propriety, the
• The Magistrate may take cognizance of the police report interest of administering justice, and the independence of
under Section 210(1)(b). the magistracy—and not as a matter of law.
The Supreme Court ruled in Vishnu Kumar Tiwari v. State The Supreme Court made it clear in a subsequent case,
of Uttar Pradesh (2019) that if a protest petition satisfies Rama Choudhary v. State of Bihar, (2009) 6 SCC 346, that
the requirements of a complaint, it may be considered a the law does not require obtaining the Magistrate’s prior
complaint and the Magistrate may handle it in accordance consent before conducting additional investigation. It is a
with Sections 200 and 202 of the Code [now Sections 223 statutory right of the police. Even if the police report is filed
and 225 of BNSS]. under Section 173(2) [now Section 193(3) of BNSS], such an
Both investigations conducted in non-cognizable cases by a investigation may still be carried out.
Magistrate’s order under Section 174(2) and investigations The legal position that results from these two rulings is that,
initiated on a First Information Report under Section 173 even though Section 193(9) does not call for the Magistrate’s
regarding a cognizable case are covered by Section 193. The consent to carry out additional investigation, police should
investigation is still ongoing as long as the police report is still obtain the Magistrate’s formal consent out of caution.
not submitted in accordance with Section 193(3). Further There will be no impact on the investigation if the police do
investigation under Section 193(9) is not precluded by the not obtain this official authorization.
report’s submission under Section 193(3). (CBI v. Dinesh Additional research is an extension of the earlier research.
Dalmia, 2007 8 SCC 413). The investigating officer may carry out additional research
Section 193(6) provides that the police officer is under a if, following the submission of the police report, he believes
duty to forward to the Magistrate along with his report: that more evidence needs to be gathered. Any evidence
• All the documents and relevant extracts. gathered during additional investigation is included in the
police report by filing a supplemental police report.
• The statements recorded under Section 180.
Copies of all or some of the documents may be provided to In Ramchandran v. R. Udhayakumar and Ors., AIR 2008 SC
the accused by the investigating police officer if he deems it 3102, the Supreme Court ruled that prior investigations are
inconvenient to do so. not erased during subsequent ones. The Supreme Court
in Hasanbhai Valibhai Qureshi v State of Gujarat and Ors.
According to Section 193(8), the police officer looking into (2004) 5 SCC 347, held that the prime consideration for
the case must also provide the Magistrate with the number further investigation is to arrive at the truth and do real and
of copies of the police report and other properly indexed substantial justice.

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The informant cannot make a request for additional trial with the consent of the Court hearing the case. The
investigation or prosecution as a matter of right. Even after investigation must be completed within ninety days, though
the police report has been submitted under Section 193(3), the Court may extend this time.
the investigating agency may carry out additional research This is a new clause that was not previously included in the
and, if more evidence is discovered, may submit it as a CrPC.
supplementary report, according to Section 193(9).
It should be noted that although the Supreme Court ruled Further investigation after taking cognizance
in State of Bihar v. JAC Saldhana, (1980) 1 SCC 554, that In Vinubhai Haribhai Malviya and Others v. State of Gujarat,
the Magistrate may order additional investigation under 2019 (3) ALT Cri 84 (SC), the Supreme Court ruled that the
Section 156(3) [now Section 175(3) of BNSS] even after the Magistrate can order additional investigation even at the
police report has been submitted, the power to do so is not post-cognizance stage until the trial starts under Section
mentioned in Section 193(9). 156(3) [now Section 175(3) of BNSS]. The Magistrate may
also use this authority on their own initiative. The Magistrate
In Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai
has the authority to decide whether or not to order additional
Patel, (2017) 4 SCC 177, the Supreme Court echoed a similar
investigation based on the particular facts of each case.
opinion. The power of the Magistrate under Section 156(3)
[now Section 175(3) of BNSS] to direct a further investigation
Re-investigation
is an independent power and does not stand in conflict with
the power of the police to conduct further investigation In BNSS, the idea of re-investigation does not exist. De novo
under Section 173(8) [now Section 193(9) of BNSS]. investigation, or a new investigation that erases the prior
investigation, is what is meant by re-investigation. In Vinay
Therefore, the investigating officer may carry out additional
Tyagi v. Irshad Ali, (2013) 5 SCC 762, the Supreme Court made
research on their own, that is, without the Magistrate’s
it clear that neither the police nor the Magistrate could order
permission; however, the Magistrate may also direct
a re-investigation. Only under extraordinary circumstances
additional investigation in accordance with Section 175(3)
may superior Courts, such as the Supreme Court or High
read with Section 193(9).
Courts, exercise their inherent authority to order a re-
In State through CBI v. Hemendra Reddy, 2023 SCC OnLine SC investigation. Only in cases where the investigation is clearly
515, the Supreme Court held the following: flawed, unfair, or mala fide can these higher Courts order a
• There is no bar against conducting a further investigation new investigation.
under Section 173(8) of the CrPC [now Section 193(9) The Supreme Court made it clear in the Vinay Tyagi case that
of BNSS] after the final report submitted under Section prior investigations will become part of the record when a
173(2) of the CrPC [now Section 193(3) of BNSS] has been re-investigation is ordered without any explicit guidance
accepted. regarding their status. There must be explicit instructions to
• Prior to carrying out further investigation under Section that effect if the Courts wish for such earlier investigations to
173(8) of the CrPC [now Section 193(9) of BNSS], it is not remain outside of the record.
necessary that the order accepting the final report should This clause has undergone some modifications. While only
be reviewed, recalled, or quashed. corresponding offenses of the IPC were mentioned in the
• Further investigation is merely a continuation of the CrPC, Section 193(2) of the BNSS, 2023, which stipulates
earlier investigation, hence it cannot be said that the that investigations into certain offenses must be completed
accused are being subjected to investigation twice within two months, now also covers some offenses under
over. Moreover, investigation cannot be put at par with the POCSO Act in addition to the BNS offenses.
prosecution and punishment so as to fall within the According to BNSS, 2023, Section 193(3), police reports may
ambit of Article 20(2) of the Constitution. The principle also be sent to the Magistrate electronically. The ability to
of double jeopardy would, therefore, not be applicable to transmit police reports via electronic communication was
further investigation. not included in the CrPC.
• There is nothing in the CrPC [now BNSS] to suggest that A new subclause (i) has been added to Section 193(3) of the
the Court is obliged to hear the accused while considering BNSS, 2023, stating that police reports must also include the
an application for further investigation under Section order of custody for electronic devices. This specific entry
173(8) of the CrPC [now Section 193(9) of BNSS]. to be stated in the police report was not mentioned in the
CrPC.
Further Investigation After Commencement of Trial
According to the Proviso to Section 193(9) of the BNSS, Section 193(3) of the BNSS, 2023 has been amended to
additional investigation may be carried out during the include a new clause, clause (i), which states that the
police officer must notify the victim or the informant of the

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investigation’s progress within ninety days using any method, District Magistrate or Sub-Divisional Magistrate within
including electronic communication. The CrPC contained no twenty-four hours, according to Section 194(2).
comparable clause. This clause has been modified. The District Magistrate or
Copies of police reports and other documents were supposed Sub-Divisional Magistrate had to receive the inquiry report
to be given to the accused under the CrPC, but this also immediately under the CrPC, but there was no deadline for
depended on the investigating officer’s convenience. But doing so. But according to BNSS, 2023, Section 194(2), such
now, Section 193(8) of BNSS, 2023, requires the investigating a report must be sent within 24 hours.
officer to provide the Magistrate with as many copies of
these documents as needed to provide them to the accused Circumstances in Which Post-mortem Will be
in accordance with Section 230 of BNSS, 2023. Conducted
Section 193(8) of the BNSS, 2023, has also been amended Section 194(3) provides that in the following circumstances,
to include a new proviso that states that reports and other the examination of the dead body (i.e., post-mortem) by a
documents sent by electronic communication will be civil surgeon is necessary:
deemed duly served. • Suicide by a woman within 7 years of her marriage.
Section 193(9) of the BNSS, 2023 has been amended with a • Death of a woman within 7 years of her marriage (where a
new proviso that states that additional investigation during reasonable suspicion arises that someone has committed
the trial may be carried out with the consent of the Court an offence).
hearing the case and that it must be finished within ninety
• Death of a woman within 7 years of her marriage (where
days, which may be extended with the consent of the Court.
any relative of a woman makes a request on behalf).
The CrPC contained no such proviso.
• If there is any doubt regarding the cause of death.
Section 194 relates to the ascertainment of the apparent
cause of death as to whether in a given case, the death • If the police officer for any other reason, considers it
is accidental, suicidal, homicidal or caused by animal or expedient to do so.
machinery.
Object and Evidentiary Value
Inquest report The Supreme Court in Tehseen Poonawalla v. Union of
India, (2018) 6 SCC 72, held that the inquest report is not
Following authorities can inquire under Section 194: a substantive piece of evidence. Its purpose is limited to
• Any officer-in-charge of the police station, or ascertaining the nature of injuries and the cause of death. Its
• Police officers specially empowered by the State object is to ascertain whether the death is suicidal, homicidal,
Government on behalf. accidental or caused by animal, machinery, etc. It states the
manner in which or by what weapon or instrument injuries
The Police officers should immediately inform the matter
appear to have been inflicted.
to the nearest Executive Magistrate empowered to hold
inquest before proceeding to the spot.
Who is Empowered to Hold Inquest? (Section
Circumstances When Inquest Will be Done 194(4)
Section 194(1) provides that an inquest will be made when an Section 194(4) empowers the following Magistrate for
officer-in-charge of the police station or other police officer holding an inquest:
specially empowered in this behalf receives information • Sub-Divisional Magistrate
that: • District Magistrate
• A person has committed suicide, • Other Executive Magistrate specially empowered in this
• Has been killed by another person, or behalf by the State Government or the District Magistrate
• Has been killed by animal or machinery or by an accident,
or Power to Summon Persons
• Died under circumstances raising a reasonable suspicion According to Section 195, a police officer may summon two
that some other person has committed the offence. or more people for an investigation by issuing a written
The apparent cause of death is reported in an inquest report. order while acting under Section 194.
In the presence of at least two respectable neighbors, the Such individuals are required to attend and provide truthful
police officer prepares it after looking into the apparent answers to all questions (with the exception of those that
cause of death. The inquest report must be sent to the

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could potentially subject them to criminal charges, penalties, Within 24 hours of the death, the deceased person’s body
or forfeiture). must be sent for a post-mortem to the closest civil surgeon
The First Proviso to Section 195(1) provides that the or other qualified medical professional designated in this
following persons shall not be required to attend any place capacity by any Magistrate or police officer conducting an
other than the place where they reside: inquiry or investigation under Section 196(2).
• A person with acute illness.
• A male person below fifteen years of age or above sixty
Section 185 Search by Police Officer
years of age. Police officers’ search procedures during an investigation are
• A mentally or physically disabled person. governed by Section 185. If they believe a key investigative
object is in a certain area, an officer may search after noting
• A woman.
the rationales in the case diary. To establish responsibility,
According to Second proviso to Section 195(1), if a person is such paperwork must include the search object and
willing to attend, they may be allowed to do so. suspected location. The law emphasises recording the
This provision has a new insertion. Section 195(1) of the BNSS, search with audio-video devices, preferably mobile phones,
2023 now has two provisos: the First Proviso and the Second to promote transparency and avoid authority abuse.
Proviso. According to the First Proviso, no woman, man The officer in command should conduct searches, but the
under the age of fifteen, man over the age of sixty, person law authorises subordinates to do so. A legal order detailing
with a physical or mental disability, or person suffering from the search must support such delegation. Section 103’s
an acute illness shall be obliged to attend any location other search warrant and procedure regulations apply here to
than their place of residence. The Second Proviso further ensure legal uniformity. Search records must be sent to
states that a person may be allowed to attend and answer the nearest magistrate within 48 hours for judicial review.
at the police station if they are willing to do so. The CrPC Free copies of the search record are available to property
contained no such corresponding provision. owners and occupiers to safeguard their interests. This
clause balances police investigation powers with individual
Inquiry by Magistrate Into Cause of Death rights to make searches legitimate, transparent, and subject
[Section 196] to judicial scrutiny.
In State of Maharashtra v. Natwarlal Damodardas Soni, the
Section 196 enables a Magistrate to hold an independent
Court ruled that the Police might search and seize an object
inquiry in case of a suspicious death. In the following
if they suspect a cognisable offence. Even if the search was
circumstances, the nearest Magistrate empowered to hold
illegal, the seizure, investigation, and trial would still stand.
an inquest shall hold an inquiry into the cause of death
either instead of or in addition to the investigation held by In State of M.P. v. Paltan Mallah, it was observed that the
the police officer: evidence obtained under illegal search is not completely
excluded unless it has caused serious prejudice to the
• In case of suicide by a woman within 7 years of her
accused.
marriage;
• In case of death of a woman within 7 years of her marriage
(where a reasonable suspicion arises that someone has
Section 186 When an Officer in Charge of
committed an offence). a Police Station May Require Another to
Section 196(2) provides that where: Issue a Search Warrant
• Any person dies or disappears, or Section 186 governs cross-jurisdictional criminal searches. If
• Rape is alleged to have been committed on any woman, the subject of the inquiry is outside the officer’s jurisdiction,
The Magistrate whose local jurisdiction the offenses were they can request a search from another officer. The officer
committed will conduct an investigation while the person or in the requested jurisdiction must follow Section 185 to
woman is in police custody or in any other custody authorized guarantee search consistency and legality. This section
by the Court or the Magistrate. Such an investigation will be also authorises an officer to search in another jurisdiction
conducted in addition to the police investigation. without permission if evidence is at risk of destruction,
reflecting the urgency of criminal investigations. Such steps
The evidence will be documented by the Magistrate include prompt notifications to the magistrate and local
conducting the investigation. If the deceased has already police station, complete documentation, and an inventory
been buried, he might have it removed and examined to of confiscated items.
determine the cause of death. Section 196(4)

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Case Laws
• Hemant Dhasmana v. CBI, (2001) 7 SCC 536: The rules of Chapter XII of the CrPC (now Chapter XIII of BNSS) apply to investigations
by the CBI. Officers under the Delhi Special Police Establishment Act are considered “police” for investigation purposes.
• Ramsingh Bavaji Jadeja v. State of Gujarat, (1994) 2 SCC 685: The Supreme Court ruled that a cryptic phone message cannot
be considered a formal complaint if the investigating officer goes to the scene to gather information about the incident. However,
information given over the phone that is not cryptic and that, on the surface, satisfies the officer regarding the commission of an
offense may be considered a formal complaint (FIR) if the officer leaves the police station after recording the information.
• Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1: The Supreme Court gave an affirmative response to the question of whether the
police must file a formal complaint (FIR) based on information provided by the informant. The Court ruled that if information reveals
the commission of a crime that can be prosecuted, the police officer has an obligation to file a formal complaint. It is not an option for
the police to make a preliminary investigation before deciding whether to file a formal complaint. Section 173 was enacted with the
intention of requiring FIR registration. The use of the word “shall” in Section 173 makes clear that the provision is mandatory. In both
State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 and Lalita Kumari’s case, the Supreme Court made it clear that the words
“reasonable” and “credible” do not qualify the word “information” in Section 154 [now Section 173 of BNSS]. While filing a formal
complaint is required, it is not required that the accused be taken into custody right away.
• Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119: The Supreme Court ruled that, as long as the informant is called as a witness
during the trial, a FIR may be used to either contradict or confirm the information under Section 145 of the Evidence Act [now Section
148 of BSA] or Section 157 of the Indian Evidence Act [now Section 160 of BSA].
• State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: The Supreme Court made it clear that the words “reasonable” and “credible”
do not qualify the word “information” in Section 154 [now Section 173 of BNSS]. While filing a formal complaint is required, it is not
required that the accused be taken into custody right away.
• Vinubhai Haribhai Malviya v. State of Gujarat, (2019) 17 SCC 1: The Magistrate has extensive authority under Section 156(3) [now
Section 175(3) of BNSS]. The Magistrate has all the authority required to ensure a thorough investigation of the matter, including
incidental or implied powers. Section 173(2) of the Code [now Section 193(3) of BNSS] gives the authority to order additional
investigation following the submission of the police report. Even at the post-cognizance stage, a Magistrate may exercise authority
under Section 156(3) [now Section 175(3) of BNSS].
• Sakiri Vasu v. State of Uttar Pradesh, (2008): The Supreme Court ruled that the Magistrate also possesses incidental and implied
powers that can be used to implement any express authority. There is no need to petition the High Court under Section 482 of the
Code [now Section 528 of BNSS] or Article 226 of the Constitution when the Magistrate orders an investigation under Section
156(3) [now Section 175(3) of BNSS] and the police officer either fails to investigate or conducts an investigation incorrectly. Section
156(3) [now Section 175(3) of BNSS] gives the Magistrate the incidental authority to issue a proper investigation or another order of
investigation.
• Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453: The Supreme Court ruled that Section 167, which is now
Section 187 of the BNSS, is an addition to Section 57 of the Code, which is now Section 58 of the BNSS. The purpose of making
the accused appear before a Magistrate is to allow the Magistrate to determine that custody is required and to give the accused the
opportunity to make any representations he may want to make.
• Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762: The Supreme Court made it clear that neither the police nor the Magistrate could order
a re-investigation. Only under extraordinary circumstances may superior Courts, such as the Supreme Court or High Courts, exercise
their inherent authority to order a re-investigation. Only in cases where the investigation is clearly flawed, unfair, or mala fide can
these higher Courts order a new one.

Key Takeaways ͵ Use of audio-video recording in sensitive cases ensures

procedural fairness.
• Enhanced Legal Framework
• Judicial Oversight and Rights of Accused
͵ BNSS modernizes criminal procedures with
͵ Magistrates ensure fairness by authorizing detention,
technological integration, such as electronic FIRs and
ordering further investigations, and protecting
mandatory forensic evidence collection.
constitutional rights.
͵ Introduces new provisions like Zero FIR to simplify FIR
͵ Strict limits on custody durations and provisions for
registration across jurisdictions.
default bail prevent undue detention.
• Transparency and Efficiency
9 Ensure compliance with the principle of “bail not
͵ Improved accountability through timelines for jail.”
investigation and mandatory reporting to victims/
9 Protect accused individuals from unwarranted
informants.
custody extensions.

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• Safeguards for Vulnerable Individuals • Under Section 184 of BNSS, the registered medical
͵ Specific protections for women, children, and practitioner to whom a rape victim is sent shall examine
individuals with disabilities during investigations and the victim and prepare a report detailing any injuries,
evidence collection. material taken for DNA profiling, and the general mental
condition of the woman.
͵ Emphasis on inclusivity through interpreters and
special educators where needed. • According to Proviso to Section 185(2), any search
conducted by the police under Section 185 of BNSS must
• Alignment with Case Law
be recorded through mobile phones.
͵ Judicial pronouncements like Lalita Kumari v. Govt.
• Section 176 BNSS specifies that, for cases involving
of U.P. highlight mandatory FIR registration, ensuring
punishments of seven years or more, a forensic expert
access to justice.
must visit the crime scene to collect evidence and
͵ Cases like Vinubhai Haribhai Malviya v. State of Gujarat document the process through videography.
affirm Magistrates’ powers for further investigation,
• Under Section 187 of BNSS, the Magistrate may authorize
even post-cognizance.
detention of the accused in custody for a term not
9 Clarifies procedural discretion granted to exceeding 15 days, either in whole or in parts, during the
Magistrates. initial period of investigation.
9 Balances investigative autonomy with judicial • Section 176(3) of BNSS mandates that the officer in charge
supervision. of a police station must involve forensic experts to visit
• Evidentiary and Procedural Standards the crime scene for cases punishable with imprisonment
͵ FIRs and police reports are critical for initiating of seven years or more and ensure videography of the
investigations but are not substantive evidence. process.
͵ Voluntary confessions recorded as per BNSS carry • According to Section 185 of BNSS, any search conducted
significant evidentiary weight. must be documented, and mobile phones or other
electronic devices should be used for recording the
9 Ensures statements are free from coercion.
procedure.
9 Promotes adherence to safeguards for admissibility.
• Section 183 of BNSS specifies that confessions or
One liners statements recorded by a Magistrate must be done
• Section 176 of BNSS provides detailed procedures for voluntarily and with proper warnings given to the accused.
investigation, including the obligation of an officer in • Under Section 187(2), a Magistrate may authorize the
charge of a police station to send a copy of the First detention of an accused in police custody for a period not
Information Report to the concerned Magistrate. exceeding 15 days in total.
• Under Section 184 of BNSS, the medical examination of • Section 179 of BNSS prohibits police officers from
a rape victim must be conducted by a registered medical summoning individuals below 15 years or above 60 years,
practitioner within 24 hours of receiving information. women, or those with physical or mental disabilities to a
• A police officer conducting a search under Section 185 of location other than their residence unless they are willing
BNSS is required to record the procedure through mobile to attend.
phones, as stipulated by the Proviso to Section 185(2). • Section 193(3) of BNSS requires that the investigating
• Section 183 of BNSS lays down the procedure for officer submit a report detailing the names of parties, the
recording statements or confessions by Magistrates sequence of custody in the case of electronic devices, and
during an investigation. whether the accused has been arrested.
• Under Section 179 of BNSS, police officers cannot require • According to Proviso to Section 193(8), any report or other
attendance at a place other than the residence for documents supplied electronically shall be considered
individuals over the age of 60 or under 15, women, or duly served unless otherwise directed by the Court.
those physically or mentally disabled. • Under Section 194(2), the inquest report must be
• Section 183(6)(b) of BNSS provides that if a person forwarded to the District Magistrate or Sub-Divisional
making the statement is permanently mentally or Magistrate within 24 hours of the examination.
physically disabled, their statement must be recorded • In cases of default bail under Section 187 of BNSS, the
with the assistance of an interpreter or special educator accused has an indefeasible right to bail if the investigation
through audio-video electronic means, preferably using a is not completed within the prescribed period of 60 or 90
recording camera. days.

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Multiple Choice Question (MCQs)

Q. Under which section of BNSS can the concept of Zero FIR and e-FIR be found?
(a) Section 174 (b) Section 175
(c) Section 176 (d) Section 173
Answer: (c)
Q. What is the principal object of the First Information Report under Section 173 BNSS?
(a) To set the criminal law in motion.
(b) To obtain information about alleged criminal activity.
(c) Both to set the criminal law in motion and to obtain information about the alleged criminal activity.
(d) None of these.
Answer: (c)
Q. If the FIR is given through electronic communication, within how many days must it be signed by the person giving
it?
(a) Seven days (b) Two days
(c) Three days (d) One day
Answer: (c)
Q. According to BNSS, who shall record the information of rape given by a rape victim?
(a) Officer in-charge of the police station (b) Deputy Superintendent of Police
(c) Officer not below the rank of Sub-Inspector (d) Woman Police Officer or any Woman Officer
Answer: (d)
Q. Which section of BNSS provides that no police officer or other person in authority shall offer or make any inducement,
threat, or promise?
(a) Section 180 (b) Section 181
(c) Section 182 (d) Section 183
Answer: (c)
Q. What is the maximum period an Executive Magistrate may authorize the detention of an accused in custody under
BNSS?
(a) 3 days (b) 7 days
(c) 15 days (d) 2 months
Answer: (b)
Q. Under Section 180 of BNSS, when can the statement of a witness be recorded by the police?
(a) During trial (b) Before investigation
(c) During inquiry (d) During investigation
Answer: (d)
Q. A statement recorded under which section of BNSS need not be signed by the maker?
(a) Section 179 (b) Section 180
(c) Section 183 (d) Section 181
Answer: (b)
Q. Under Section 183 BNSS, a confessional statement can be recorded:
(a) During the course of investigation or at any time afterward before the commencement of inquiry or trial.
(b) During the course of investigation only and not afterward.
(c) During investigation as well as during inquiry but before the commencement of trial.
(d) None of the above.
Answer: (a)
Q. According to Section 184 of BNSS, within what time frame must a victim of rape be sent to a registered medical
practitioner?
(a) 6 hours (b) 12 hours
(c) 24 hours (d) 36 hours
Answer: (c)

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Q. Under Section 179 of BNSS, which category of individuals cannot be required to attend a place other than their
residence?
(a) Any male person under the age of 15 years or above the age of 60 years
(b) Any woman
(c) Any mentally or physically disabled person
(d) All of the above
Answer: (d)
Q. Under BNSS, who can authorize a search without a warrant during an investigation?
(a) Any police officer (b) Investigating officer
(c) Both (a) and (b) (d) None of the above
Answer: (c)
Q. According to BNSS, a confession or statement can be recorded by a Magistrate under which section?
(a) Section 180 (b) Section 181
(c) Section 183 (d) Section 182
Answer: (c)
Q. What is the maximum period for which a Magistrate can authorize police custody under BNSS?
(a) 7 days (b) 15 days
(c) 30 days (d) 60 days
Answer: (b)
Q. Which section of BNSS deals with the medical examination of a rape victim?
(a) Section 184 (b) Section 185
(c) Section 186 (d) Section 187
Answer: (a)
Q. Which Section of BNSS deals with default bail?
(a) Section 187(2) (b) Section 187(3)
(c) Section 187(4) (d) Section 187(6)
Answer: (b)
Q. Default bail is given in case of:
(a) Where the investigation is not completed within the prescribed time
(b) Where the offence is bailable
(c) Where the person applies for anticipatory bail
(d) Where the trial concludes but judgment is not delivered
Answer: (a)
Q. What is the maximum period of detention during investigation for offences punishable with death, life imprisonment,
or imprisonment for 10 years?
(a) 60 days (b) 90 days
(c) 120 days (d) 180 days
Answer: (b)
Q. Under Section 187 of BNSS, the Magistrate can authorize detention for a total period of 90 days in cases punishable:
(a) With death (b) With life imprisonment
(c) With imprisonment for a term not less than 10 years (d) All the above
Answer: (d)
Q. Which Section of BNSS provides that a Magistrate can stop further investigation in certain cases?
(a) Section 187(7) (b) Section 187(9)
(c) Section 187(10) (d) Section 188
Answer: (b)
Q. What is the primary object of an inquest report under Section 194 of BNSS?
(a) To know the names of the accused (b) To ascertain the motive of the offence
(c) To know the apparent cause of death (d) To locate the place of occurrence
Answer: (c)

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Q. Under Section 195 of BNSS, who cannot be summoned during an investigation?

(a) A male person under 15 years of age or above 60 years of age
(b) A woman
(c) A person with acute illness or a physical/mental disability
(d) All of the above
Answer: (d)
Q. Which section of BNSS mandates the completion of investigations into offences under the POCSO Act within two
months?
(a) Section 193(1) (b) Section 193(2)
(c) Section 193(3) (d) Section 194
Answer: (b)
Q. What happens when the officer-in-charge receives information about a person’s suicide under BNSS?
(a) He informs the Executive Magistrate immediately (b) He informs the higher police authority
(c) He holds an inquest to ascertain the truth (d) All of the above
Answer: (a)
Q. Under BNSS, which section allows further investigation during trial with the permission of the Court?
(a) Proviso to Section 193(7) (b) Proviso to Section 193(8)
(c) Proviso to Section 193(9) (d) Section 193(10)
Answer: (c)
Q. Which section of BNSS deals with the police officer’s power to release an accused when evidence is deficient?
(a) Section 188 (b) Section 189
(c) Section 190 (d) Section 191
Answer: (b)
Q. What is the period within which an inquest report must be forwarded under Section 194(2) of BNSS?
(a) 24 hours (b) 48 hours
(c) 2 days (d) 4 days
Answer: (a)
Q. Under Section 193(3)(ii) of BNSS, within how many days must the investigating officer inform the informant or
victim about the progress of the investigation?
(a) 15 days (b) 30 days
(c) 90 days (d) 60 days
Answer: (c)
Q. Which section of BNSS mandates that further investigation during a trial must be completed within 90 days unless
extended by the Court?
(a) Section 193(7) (b) Proviso to Section 193(9)
(c) Section 193(8) (d) Proviso to Section 194
Answer: (b)
Q. Which section of BNSS deals with the submission of a police report to a Magistrate upon completion of an
investigation?
(a) Section 193(1) (b) Section 193(3)
(c) Section 194 (d) Section 195
Answer: (b)

Previous Year Mains Questions

Q. What is the First Information Report? What is its object and importance at the trial? Distinguish it from the statement
of a witness in the course of investigation.)
Q. Are the provisions of Section 154(1) of Cr.P.C. mandatory? Give reasons for your answer and cite the relevant case
law.)
Q. How is the power of a Magistrate to order a police investigation under Section 156(3) of the Code of Criminal
Procedure, 1973 different from the power to direct investigation conferred by Section 202(1) of the Code?)

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Q. An incident of murder happens under the jurisdiction of a police thana. The police thana in-charge starts an
investigation. Can the Magistrate order to stop the investigation? If yes, when can he do so? Give reasons.)
Q. An admission by the witness that what is stated in his previous statement recorded under Section 164 of the Code
of Criminal Procedure, 1973, is true, would not have the effect of making the entire statement admissible. Explain.
 [GJS 2017])
Q. Apart from the investigating officer, can a prosecutrix approach the Magistrate directly for recording her statement
under section 164 Cr.P.C. during the course of investigation? [DJS 2000])
Q. Write a short note on the object and evidentiary value of the inquest report. [DJS 2019])
Q. What are the options before the Magistrate when a final report is filed? During the course of trial, the evidence
revealed that the investigation officer was not truthful with the investigation and the real offender was not brought
before the Court. The Magistrate suo motu ordered further investigation. State the legality of the action by the
Magistrate.)
Q. Locus standi in a Protest Petition: Can it be entertained after acceptance of the closure report?)
Q. Relevance and effect of absence of name of the accused in the First Information Report.)
Q. Importance, relevance and evidentiary value of police diaries in criminal trial.)
Q. Before ordering further investigation under Section 173(8) of the Code of Criminal Procedure, 1973, the Court is
under an obligation to hear the accused. Explain.

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|Page 106|
CHAPTER - 10
Bharatiya Nagarik Suraksha Sanhita

Jurisdiction of the Criminal Courts in Inquiries and Trials

Learning Objectives
Understand the different types of jurisdiction under BNSS:
• Subject matter jurisdiction and its importance in ensuring a Court’s authority to try specific offenses.
• Territorial jurisdiction and its application in determining the place of inquiry and trial.
• Exceptional provisions when the general rule of local jurisdiction does not apply.
Gain insights into the general principles of territorial jurisdiction:
• Application of Section 197 as the default rule.
• Exceptions under Sections 199–205 and 208.
Learn the procedural rules for:
• Trials of offenses triable together (Section 204).
• Transfer of trials to other sessions divisions (Section 205).
• Resolving jurisdictional conflicts by High Courts (Section 206).
Comprehend the expanded scope of jurisdiction in modern contexts:
• Handling offenses involving electronic communication (Section 202).
• Trying offenses committed outside India (Section 208).
• Clarifications on procedural requirements for trials involving international offenders.

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Types of Jurisdiction The offence of deception and dishonesty inducing the

delivery of property may be adjudicated by the Courts within
• Subject matter jurisdiction: Refers to a Court’s authority whose local jurisdiction the property was located.
to hear specific types of cases. The proceedings will be
1. conveyed by the deceived individual, or
null and void if the Court lacks the authority to try a
specific matter or offense. 2. obtained by the accused.
• Territorial jurisdiction: Concerns the Court’s or the When an individual is defrauded through false
trial Court’s local jurisdiction. The Courts’ territorial representations via letters, telegraphs, etc., and the victim is
jurisdiction is covered in this Chapter. persuaded to transfer property to the accused at a different
location, no aspect of the offence of cheating occurs at the
General Rule deceiver’s location; the entirety of the offence is perpetrated
For investigations or trials of offenses, the rules contained in at the victim’s location. The individual charged with the
Sections 197–209 will apply. Proceedings under Chapters IX, offence of distant cheating shall be prosecuted not only at
X, or XI are exempt from them. the location where the victim was defrauded and handed
over their property but also at the site where the accused
According to the general rule established by Section 197,
has engaged in fraudulent activities and profited from them.
“every offense shall ordinarily be inquired into and tried by
a Court within whose local jurisdiction it was committed.” The crime under section 82 of the Bharatiya Nyaya Sanhita,
There are exceptions, as the word “ordinarily” implies, and 2023 may be adjudicated by the Court within whose
these are explained in Sections 199–205 and 208. jurisdiction:
The Supreme Court ruled in State (NCT of Delhi) v. Brijesh 1. The crime of bigamy as defined in Section 82 of the
Singh, (2017) 10 SCC 779, that a crime can be tried in another Bharatiya Nyaya Sanhita, 2023 was perpetrated, or
state even if it was committed there if it had a negative 2. The perpetrator last cohabited with their spouse from
impact there. In these situations, the statement “crime is the first marriage, or
local” does not apply. 3. The wife from the first marriage has established
In Rajendra Ramchandra Kavalekar v. State of Maharashtra, permanent residency subsequent to the conduct of the
(2009) 11 SCC 286: The Supreme Court ruled that the crime.
location of the incident—rather than the place where the A statutory limitation exists regarding bigamy complaints,
complaint was filed—determines territorial jurisdiction with stipulating that the grievance must be lodged by the affected
regard to a criminal offense. spouse to initiate actions against the bigamist. The issue of
jurisdiction presents significant challenges for the aggrieved
Section 202 Offences Committed by party seeking to initiate proceedings against a bigamist
located at a considerable distance. Given that bigamy
Means of Electronic Communications,
constitutes an affront to the institution of marriage, which is
Letters, etc of societal concern, it is imperative that the opportunity to
Section 202 pertains to offences perpetrated through bring offenders before the courts is not hindered by limiting
electronic communications, letters, or messages. In the venue to the localities where the bigamous marriage
such instances, the court in which the communication occurred.
was transmitted or received may possess jurisdiction. The inclusion of the clause “or the wife by first marriage
Furthermore, in instances of fraud, the jurisdiction where has taken up permanent residence after the commission of
the property was transferred or accepted may investigate or offence” primarily serves to enable the first wife to lodge a
adjudicate the violation. complaint at her permanent abode following the commission
If an offence involves cheating and deception perpetrated of the offence.
by tellers or telecommunications messages, it may be
adjudicated by the Court within whose local jurisdiction it Section 203 Offence Committed On
falls. Journey or Voyage
1. The locations from where the letters or messages were
Section 203 establishes jurisdiction in instances where
dispatched, or
an offence occurs during a journey or voyage. In such
2. the locations where the letters or messages were circumstances, the offence may be adjudicated by a court
received. within whose jurisdiction the individual or object passed
during the travel. This section guarantees that criminal

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offences committed during travel remain subject to legal Power to Issue Summons or Warrant
scrutiny.
for Offenses Committed Beyond Local
Place of Trial for Offenses Triable Together Jurisdiction [Section 207]
[Section 204] Section 207 empowers a Judicial Magistrate of the First
Class to issue summons or warrants for offenses committed
Section 204 states that offenses committed by a person may beyond his local jurisdiction. The Magistrate can invoke this
be charged or tried together as one trial under Sections 242, power when he has reason to believe:
243, or 244. Offenses committed by several persons may be
1. The offense has been committed outside the local limits,
charged and tried together under Section 246. Such offenses
whether within or outside India.
may be inquired into or tried by any Court competent to try
any of the offenses. 2. The offense is one that cannot be tried under the
provisions of this Chapter or under some other law.
Power to Order Trials in Different Sessions 3. The offender is present within the local limits of his
jurisdiction.
Divisions [Section 205]
4. The offense is triable in India.
Section 205 gives the State Government the authority to A Magistrate summoning the person before him should
order that a case that has been committed for trial in a send him to the Magistrate having jurisdiction to inquire
specific district be tried in a session division that is not or try such offense. When the Magistrate is doubtful about
affiliated with the district.This power is used when it is in the jurisdiction of the Court, where he has to forward the
the public interest to hold a trial in a different division. The person brought before him, he should refer the matter to
directives of the State Government cannot come in conflict the High Court, which shall decide the matter. If the offense
with the rulings of the High Courts or the Supreme Court. for which the person is arrested is not punishable with a
State government directives cannot conflict with Supreme death sentence or imprisonment for life and if such person
Court or High Court rulings. is ready and willing to give bail, the Magistrate shall take a
bond with or without surety for his appearance before the
Power of High Court to Decide Place of Magistrate having jurisdiction.
Inquiry or Trial [Section 206]
Section 206 provides that: Offenses Committed Outside India
• When two or more Courts take cognizance of the same [Section 208]
offense and a question arises regarding which Court Section 208 provides that when an offense is committed
should try the offense, the High Court will decide. outside India:
• If subordinate to the same High Court, it will resolve the • By a citizen of India, whether on the high seas or
dispute. elsewhere.
• If not, the High Court under whose jurisdiction the • By an alien, on any ship or aircraft registered in India.
proceedings first commenced will resolve the matter. He may be treated as though the offense had been committed
anywhere in India where he may be found or where the
Power of High Court, in Case of Doubt, to offense is registered. Section 208 prohibits any investigation
Decide the Place of Inquiry or Trial [Section or trial from taking place without prior approval of the
206] Central Government , but it does not prevent cognizance
Section 206 provides that where two or more Courts have from being taken.
taken cognizance of the same offense and a question arises The Supreme Court ruled in Om Hemrajani v. State of U.P.,
as to which of them ought to inquire into or try that offense, (2005) 1 SCC 617, that the purpose of Section 188 (now
the question shall be decided by: Section 208 of BNSS) is to eliminate any objection or claim
1. High Court (where Courts are subordinate to the same of lack of jurisdiction made by a fugitive who has committed
High Court), or the crime in another nation. According to legal fiction, the
location where the offender may be found is the site of the
2. High Court within whose local limits of appellate criminal
offense, as stipulated by Section 188 (now Section 208 of
jurisdiction the proceedings were first commenced
BNSS), which addresses offenses committed outside of India.
(where Courts are not subordinate to the same High
Court).

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In Nerella Chiranjeevi Kumar v. State of Andhra Pradesh, Amendments in BNSS, 2023

(2021), the Supreme Court noted that, in accordance with
Section 188 of the Code of Criminal Procedure [now Section Certain changes have been made in these provisions:
208 of BNSS], a criminal trial against an Indian citizen for • Section 182 of CrPC dealt with jurisdiction in cases
crimes committed outside of India cannot begin without the of offenses committed by means of letters or
Central Government’s approval. However, at the cognizance telecommunication only. However, the corresponding
stage, such prior sanction is not necessary. Section 202 of BNSS, 2023 also includes offenses
The Supreme Court ruled in Sartaj Khan v. State of committed by means of electronic communications.
Uttarakhand, (2022) that when the entire offense is • Section 208 of BNSS, 2023 has been modified to provide
committed outside of India, Section 188 of the Code of that offenses committed outside India on Indian ships or
Criminal Procedure (now Section 208 of the BNSS) is aircraft may also be tried at the place where the offense
activated. The imposition of sanctions would allow for an is registered in India, whereas in CrPC, it was provided
investigation or trial of such an offense in India. However, that it could only be tried at the place where the accused
under normal circumstances, an Indian Court could try the was found.
case and Section 188 [now Section 208 of BNSS] would not • In Section 209 of BNSS, 2023, the words “either in physical
apply if a portion of the offense was committed in India. form or in electronic form” have been added.

Key Takeaways
• Subject Matter Jurisdiction: a. Courts lacking jurisdiction over specific subject matters render proceedings null and void.
• Territorial Jurisdiction: a. The general rule under Section 197 is to try an offense within the local jurisdiction where it occurred.
– Exceptions allow trials in alternate jurisdictions based on the offense’s impact or circumstances (e.g., State (NCT of Delhi) v.
Brijesh Singh).
• Special Jurisdictional Powers: a. State Governments can order trials in different session divisions (Section 205).
– High Courts can resolve jurisdictional disputes between subordinate Courts (Section 206).
• Trials for Offenses Outside India: a. Indian citizens committing offenses abroad or aliens committing offenses on Indian ships/aircraft
can be tried in India (Section 208).
– Central Government sanction is required for investigations and trials, but not for cognizance (e.g., Om Hemrajani v. State of U.P.).

Case Laws
• State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779: The Supreme Court ruled that a crime can be tried in another state even
if it was committed there if it had a negative impact there. In these situations, the statement “crime is local” does not apply.
• Om Hemrajani v. State of U.P., (2005) 1 SCC 617: The Supreme Court ruled that the purpose of Section 188 (now Section 208 of
BNSS) is to eliminate any objection or claim of lack of jurisdiction made by a fugitive who has committed the crime in another nation.
According to legal fiction, the location where the offender may be found is the site of the offense, as stipulated by Section 188 (now
Section 208 of BNSS), which addresses offenses committed outside of India.
• Nerella Chiranjeevi Kumar v. State of Andhra Pradesh, (2021): The Supreme Court noted that, in accordance with Section 188 of
the Code of Criminal Procedure [now Section 208 of BNSS], a criminal trial against an Indian citizen for crimes committed outside
of India cannot begin without the Central Government’s approval. However, at the cognizance stage, such prior sanction is not
necessary.
• Sartaj Khan v. State of Uttarakhand, (2022): The Supreme Court ruled that when the entire offense is committed outside of India,
Section 188 of the Code of Criminal Procedure (now Section 208 of the BNSS) is activated. The imposition of sanctions would allow
for an investigation or trial of such an offense in India. However, under normal circumstances, an Indian Court could try the case and
Section 188 [now Section 208 of BNSS] would not apply if a portion of the offense was committed in India.

One Liners
• The jurisdiction of a Court in a criminal case involving theft extends to where the theft is committed, where the stolen property is
found, or where it is knowingly concealed, as per the provisions of BNSS.
• Section 208 of BNSS provides that any offence committed outside India may be dealt with as if committed within India if the offender
is found within Indian territory.
• An offence committed outside India by an Indian citizen, such as a murder in a foreign country, can be prosecuted in India only after
obtaining the previous sanction of the Central Government, ensuring jurisdictional compliance under BNSS.

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• Section 203 of BNSS applies to offences committed during voyages within Indian waters as well as those on the high seas, establishing
broad jurisdictional provisions for maritime offences.
• Under BNSS, for offences like bigamy, the inquiry or trial may take place where the offence was committed, where the offender last
resided with their spouse, or at the permanent residence of the aggrieved person, providing comprehensive jurisdictional options.
• For offences committed by means of electronic communication, BNSS stipulates that jurisdiction lies with the Court within whose
local limits the communication was sent, received, or where its consequences arose.
• In cases where an offence occurs in one location and its consequences occur in another, Section 199 of BNSS governs the jurisdiction
of the Court to ensure proper trial of such interconnected offences.
• Section 205 of BNSS grants the State Government the authority to direct that cases committed for trial in one district may be
transferred to any Sessions Division within the state, providing flexibility in handling criminal cases.
• Offences of kidnapping may be tried at any of the following locations: the place of abduction, the place the victim was taken to, or
the final location where the victim was discovered.
• BNSS establishes that offences committed outside India by Indian citizens are to be tried in India, provided there is prior sanction
from the Central Government, safeguarding jurisdictional integrity.

Multiple Choice Question (MCQs)

Q. Which Chapter of BNSS contains provisions regarding jurisdiction of the criminal Court in inquiries and trials?
(a) Chapter XV (b) Chapter XIII
(c) Chapter XIV (d) Chapter XVI
Answer: (b)
Q. Which section of BNSS lays down that every offence shall ordinarily be inquired and tried by the Courts within
whose local jurisdiction offence was committed?
(a) Section 198 (b) Section 197
(c) Section 199 (d) Section 200
Answer: (a)
Q. An offence is committed by a British citizen on an aircraft registered in India. The offender may be dealt with under
which provision of the BNSS?
(a) Section 208 (b) Section 209
(c) Either (a) or (b) (d) Section 210
Answer: (c)
Q. Which section of BNSS empowers the State government to direct that any case or classes of cases committed for
trial in any district may be tried in any Sessions Division?
(a) Section 203 (b) Section 202
(c) Section 205 (d) Section 201
Answer: (c)
Q. Which section of BNSS deals with the jurisdiction of the Court in cases where offences are committed by means of
electronic communications?
(a) Section 199 (b) Section 200
(c) Section 201 (d) Section 202
Answer: (d)
Q. Ordinarily, the place of trial is:
(a) Where the offence has been committed (b) Where the victim resides
(c) Where the accused resides (d) Where the FIR is lodged
Answer: (a)
Q. For trial of cases of criminal abetment, which Court is the competent Court?
(a) Local limits of the Court where the abetment was committed
(b) Any of the Courts where abetment intention was alleged
(c) Where the wrongful concealment of the accused is shown
(d) All of the above
Answer: (a)

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Q. For an offence of bigamy, the place of inquiry or trial may be:

(a) Only where the offence was committed
(b) Only where the offender resided last with his first wife
(c) At the Court’s jurisdiction where the permanent residence of the aggrieved woman, after the offence, is situated
(d) All of the above
Answer: (d)
Q. An offence of kidnapping may be tried:
(a) At the place from which the victim was kidnapped (b) At the place where the victim was taken
(c) At the final location where the victim was detected (d) Any of the above places
Answer: (d)

Previous Year Mains Questions

Q. Describe briefly the rules governing territorial jurisdiction of criminal Courts in inquiries and trials.
Q. Whether a finding or sentence of a criminal Court can be set aside merely on the ground that such Court did not
have territorial jurisdiction for inquiry or trial?
Q. A abets B at Prayagraj to commit murder of C at Mumbai. B committed murder of C at Mumbai. What will be the
venue of the trial? Decide.
Q. Where a boy is kidnapped from Prayagraj and first taken to Mumbai and then to Guwahati. What will be the venue
of the trial? Decide.
Q. Where the offence has been committed in the nature of cheating through letters between two persons situated at
Meerut and Agra. What will be the venue of the trial? Decide.
Q. Where the offence has been committed in train during journey between Kolkata and Prayagraj. What will be the
venue of the trial? Decide.
Q. State with reasons which of the Courts shall have jurisdiction to try the cases arising out of the following facts:
(a) A is kidnapped from Lucknow and is recovered from a house in Kanpur.
(b) Injuries were caused to X at Lakhimpur. He died of those injuries at Kanpur where he was brought for treatment.
(c) A dacoity was committed in the town Patna, the dacoits were arrested at Dhanbad, the looted property was
recovered from a goldsmith at Gaya.

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CHAPTER - 11
Bharatiya Nagarik Suraksha Sanhita

Conditions Requisite for Initiation of Proceedings

Learning Objectives
Understand the concept of “Cognizance”:
• Comprehend its meaning and judicial interpretation.
• Learn its significance as the starting point of judicial proceedings.
Analyze judicial interpretations of cognizance:
• Evaluate Supreme Court rulings on when cognizance is taken.
• Understand the distinction between taking cognizance and the issuing process.
Explore the procedural framework for taking cognizance:
• Methods under Section 210 of BNSS:
– Upon complaint.
– Upon a police report.
– Upon information from any person or own knowledge.
• Procedural safeguards, including discretionary powers of Magistrates.
Examine restrictions and exceptions to cognizance:
• Special procedures for defamation, contempt of public servants, and offenses against the State.
• Clarifications on public servant protections under Section 218.
Compare BNSS 2023 and CrPC provisions:
• Note key amendments in Sections 210–222.
• Understand the modernization of cognizance mechanisms, including electronic records.
Learn about Magistrates’ discretionary powers in cognizance:
• Their ability to summon additional accused.
• Decision-making in complaint dismissals and police investigations.

There is no definition of “cognizance” in Section 210 in Observations on Cognizance

BNSS. According to M.L. Sethi v. R.L. Kapur, AIR 1967 SC
528, the phrase is used to denote the moment at which the • Taking cognizance under Section 210 does not depend
Magistrate takes judicial notice of an offense in order to upon the presence of the accused in the Court.
begin the criminal proceedings. • The accused has no role to play at this stage.
The Supreme Court ruled in Subramanian Swamy v. • The meaning of “cognizance” has been explained by the
Manmohan Singh, AIR 2012 SC 1185, that cognizance is judicial pronouncements.
when a Court of law with jurisdiction takes judicial notice of a According to the Supreme Court’s ruling in S.K. Sinha, Chief
matter that has been brought before it in order to determine Enforcement Officer v. Videocon International Ltd. and
whether there is a basis for initiation proceedings. others, (2008) 2 SCC 492, the word “cognizance” means “to
A process is not issued just because cognizance is taken become aware of,” and when a Court or judge is mentioned, it
(Manhari Bhai v. Shailesh Bhai, (2012) 10 SCC 527). According implies “to take notice judicially.” Taking cognizance happens
to the established law, a Court can only take cognizance of an as soon as a Magistrate applies their mind to the suspected
offense once, and once it has done so, the Court is functus commission of an offense; it does not require any official
officio. The order of cognizance cannot be recalled (Bholu action. A valid trial requires cognizance as a prerequisite or
Ram v. State of Punjab, (2008) 9 SCC 140). sine qua non.

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According to the Supreme Court’s ruling in D. The Magistrate will have good reason to take that course
Lakshminarayana Reddy and Others v. Narayana Reddy and of action rather than taking cognizance if, after reviewing
Others, AIR 1976 SC 1672, a case can only be considered the complaint, they conclude that the allegations reveal
instituted in a Court when the Court takes cognizance of the the commission of a cognizable offence and that sending
offense alleged in Section 190 [now Section 210 of BNSS] the complaint to the police for investigation under Section
and the Code’s scheme [now BNSS]. Section 210(1) outlines 156(3) [now Section 175(3) of BNSS] will be beneficial. In the
the methods for taking such cognizance in clauses (a), (b), case of D. Lakshminarayana, this stance was also adopted.
and (c). The Supreme Court reaffirmed in M/s Supreme Bhiwandi
The Supreme Court ruled in Ajay Kumar Parmar v. State Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra
of Rajasthan, (2012) 9 SCALE 542, that a Magistrate may and Others, (2021) that a Judicial Magistrate may order a
decline to take cognizance in the exercise of his authority police investigation under Section 156(3) CrPC [now Section
under Section 190 [now Section 210 of BNSS] if the evidence 175(3) of BNSS] without first requiring the complainant to
in the case justifies it. However, at this point, the Magistrate be examined under oath under Section 200 of the Code of
is unable to balance the likelihood of the case or evaluate Criminal Procedure [now Section 223 of BNSS].
the available evidence to draw a conclusion.
Regarding complaints, the Court decided that the Magistrate Is Taking Cognizance of an Offence the Same
use their judgment to proceed in accordance with Section as the Issuance of Process?
200 [now Section 223 of BNSS] and the subsequent sections In State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, the
in Chapter 15 of the Code [now Chapter 16 of BNSS] Supreme Court ruled that the issuance of process is not the
after receiving a complaint. They are considered to have same as the recognition of an offense. When the Magistrate
understood the offense at that point, as defined by Section applies their judicial mind to the facts stated in a police report,
190(1)(a) [now Section 210(1)(a) of BNSS]. a complaint, or on information from another individual that
The Magistrate cannot be said to have taken cognizance of an offense has been committed, cognizance is taken at the
any offense if, in the exercise of their judicial discretion, they outset. Process is issued later when the Court determines to
have taken another course of action in lieu of proceeding move forward against the criminals against whom a prima
under Chapter 16, such as issuing a search warrant for the facie case has been established after reviewing the evidence
purpose of investigating or directing the police to conduct an presented to it.
investigation under Section 175(3).
Can a Magistrate Order an Investigation
Can a Magistrate Take Cognizance in Respect Before Taking Cognizance?
of Persons Against Whom No Challan Has In Mohd. Yousuf v. Smt. Afaq Jahan and Others, AIR 2006 SC
Been Filed? 705, the Supreme Court ruled that a Magistrate may, prior
The Supreme Court ruled in Raghu Bans Dubey v. State of to taking cognizance, order an investigation under Section
Bihar, AIR 1967 SC 1167, that when the Magistrate exercises 156(3) [now Section 175(3) of BNSS].
cognizance, they do so for an offense and not just for the The Court explained that Section 156(3) of the Code [now
individuals listed on the chargesheet. Therefore, after Section 175(3) of BNSS] permits any Judicial Magistrate
reviewing the police report and the related documents, the to order an investigation prior to taking cognizance of the
Magistrate has the right to take cognizance and summon offense. Since they are not taking cognizance of any offense
other accused people against whom they believe there is a therein, they are exempt from questioning the complainant
solid evidence. under oath if they do so.

Is the Magistrate Bound to Take Cognizance Cognizance of Offences by the Magistrate

When They Receive a Complaint?
How Taken?
The Supreme Court ruled in HDFC Securities Ltd. v. State
• Upon a complaint [Section 210(1)(a)].
of Maharashtra, (2017) 1 SCC 640, that if the facts of the
complaint do not reveal the commission of a crime that • Upon a police report [Section 210(1)(b)].
can be prosecuted, the Magistrate is not required to take • Upon receiving information from any person (other than
cognizance of the complaint. Section 190(1) [now Section a police officer) or upon their own knowledge [Section
210(1)] does not use the phrase “may take cognizance” 210(1)(c)].
interchangeably with “must take cognizance.” In this case, Who Can Take?
the word “may” grants the Magistrate discretion.
• Judicial Magistrate of the first class.

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• Judicial Magistrate of the second class (empowered by • Where it has been provided by the BNSS itself under
CJM). Section 222(2).
Section 210(1) provides that any Magistrate of the first class, • Where it has been provided by any other law for the time
and any Magistrate of the second class duly empowered on being in force.
this behalf under Section 210(2), may take cognizance of any
offence: Restrictions on Taking Cognizance
• Upon receiving a complaint of facts, including any
Section 214 provides that an Additional Sessions Judge or an
complaint filed by a person authorized under any special
Assistant Sessions Judge shall try such cases:
law, which constitutes such offence;
• Made over to them by the Sessions Judge of the division,
• Upon a police report (submitted in any mode, including
or
electronic mode) of such facts;
• Directed to be tried by the High Court by a special order.
• Upon information received from any person other than
a police officer, or upon their own knowledge, that such The Supreme Court in Joginder Singh and Another v. State
offence has been committed. of Punjab and Another, held that when a case is committed
to a Court of Session in respect of an offence, the Court
This clause has been modified. In the BNSS, 2023, Section
of Sessions takes cognizance of the offence and not of the
210(1)(a) has been amended to read, “including any
accused.
complaint filed by a person authorized under any special
law.” This was not covered by CrPC. Police reports can also
be submitted electronically, according to Section 210(1)(b), Cognizance of Offences Regarding
which was not covered by the CrPC. Contempt of Lawful Authority of Public
Servants, Offences Against Public Justice,
Transfer of Case on the Application of and Offences Relating to Documents Given
Accused [Section 211] in Evidence [Section 215]
According to Section 211, if a Magistrate takes cognizance of Section 215 provides that:
an offense based on information from someone (aside from
a police officer) or if a Magistrate takes cognizance on their • On the written complaint of the public servant in
own initiative, the accused has the right to request that the question, another public servant to whom they report
case be investigated or tried by a different Magistrate. administratively, or another public servant designated by
the concerned public servant to do so, a Court may take
cognizance of any offence under Sections 206–223 (with
Making Over a Case to Magistrate [Section the exception of Section 209) of the Bharatiya Nyaya
212] Sanhita, or its abetment, attempt, or criminal conspiracy.
According to Section 212, any Chief Judicial Magistrate • On the written complaint of the Court or its authorized
may refer the case for investigation or trial to any qualified officer, or of another Court to which that Court is
Magistrate under their supervision after gaining cognizance subordinate, a Court may take cognizance of any offense
of the offense. under Sections 229–233, 236, 237, 242–248, and 267 of
the Bharatiya Nyaya Sanhita (if the offense is alleged to
In Anil Saran v. State of Bihar, (1995) 6 SCC 142, the Supreme
have been committed in any proceeding in any Court),
Court ruled that a Chief Judicial Magistrate who transfers
or any offense under Sections 336(1), 340(2), or 342 of
a case without taking cognizance does not prevent the
the Bharatiya Nyaya Sanhita (if the offense is alleged to
receiving Magistrate from taking cognizance.
have been committed concerning a document presented
in evidence), or its abetment, attempt, or criminal
Cognizance of Offences by Court of Session conspiracy.
[Section 213] State of Haryana v. M.S. Ahlawat (2000) 1 SCC 728: The
Section 213 provides that no Court of Session shall take Supreme Court ruled that Section 195 [now Section 215 of
cognizance of any offence as a Court of original jurisdiction BNSS] was mandatory and that no Court could consider any
unless the case has been committed to it by a Magistrate of the offenses listed therein without a written complaint, as
under the Sanhita. required by the section.
Exceptions to this Rule: State of Bihar v. Narendra Kumar Srivastava, 2019 3 SCC
318 According to the Supreme Court, prosecution under

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Conditions Requisite for Initiation of Proceedings |Page 115|

Section 195(1)(b) [now Section 215(1)(b) of BNSS] can only executive act. The test to be applied is whether the relevant
be started with the approval of the Court where the alleged materials forming the basis of allegations were placed before
activities took place. Private complaints are not accepted. the sanctioning authority.
According to the Supreme Court’s ruling in Vishnu
Chandra Gaonkar v. N.M. Desai, (2018) 5 SCC 422, Section Prosecution of Judges and Public Servants
195(1)(b)(i) [now Section 215(1)(b) of BNSS] is only applicable [Section 218]
if the offense listed therein was committed in relation to a
document after that document was produced or used as Any individual who is or was a judge, Magistrate, or public
evidence in the Court proceedings. servant who cannot be removed from office without the
approval of the government and who is charged with a
Prasad Vassudev Keni v. Bandekar Bros. (P) Ltd. (2020) 20
crime allegedly committed while acting or ostensibly acting
SCC 1: The Supreme Court ruled that the process outlined
in the course of their official duties is prohibited from
in Section 195 [now Section 215 of BNSS] must be followed
being prosecuted without prior approval from the central
for all offenses if two distinct offenses occur in the same
government or state governments, according to Section 218.
transaction, one of which is covered by Section 195 [now
Section 215].
Time Limit for Sanction
There is a change in this provision. In CrPC, a Magistrate can
Proviso II to Section 218(1) provides that the Government
take cognizance of offences of contempt of lawful authority
shall take a decision within 120 days from the receipt of the
of public servants on a complaint in writing either from the
request for sanction. If it fails to do so, the sanction shall be
public servant himself or from some other public servant
deemed to have been accorded by the Government.
to whom he is administratively subordinate. However,
Section 215 of BNSS, 2023 provides that any public servant Exemptions from Sanction
authorized by the concerned public servant can also file the
complaint. According to Proviso III to Section 218(1), public employees
who are accused of violating Sections 64, 65, 66, 68, 69,
70, 71, 74, 75, 76, 78, 79, 143, 199, or 200 of the Bharatiya
Cognizance of Offences Against the State Nyaya Sanhita, 2023, are exempt from punishment.
and Criminal Conspiracy to Commit Such This clause now includes a new addition. The CrPC did not
Offences [Section 217] specify when the government would decide whether to grant
sanction for the prosecution of judges or public servants or
Section 217 provides that:
when that sanction would be considered granted. However,
• Chapter VII, Sections 196, 197, or 353(1) of the Bharatiya a new proviso has been added to Section 218(2) of the BNSS,
Nyaya Sanhita, 2023, or Section 47 of the Bharatiya 2023, known as Proviso II. It states that the government
Nyaya Sanhita, which deals with criminal conspiracy must make a decision within 120 days of receiving the
or abetment, can all be brought before a Court with a request for sanction. If it doesn’t, it will be assumed that the
prior approval from the Central Government or the State government has granted the sanction.
Government only [Section 217(1)].
In K. Kalimuthu v. State, (2005) 4 SCC 512, the Supreme Court
• With prior approval from the Central Government, State ruled that the prohibition under Section 197 [now Section
Government, or District Magistrate only, a Court may take 218 of BNSS] is comprehensive and absolute. It is evident
cognizance of any offense under Section 197 or Sections from the use of the words “no” and “shall” that the bar to
353(2) and 353(3) of the Bharatiya Nyaya Sanhita, 2023, taking cognizance is absolute.
or its criminal conspiracy [Section 217(2)].
Similarly, without prior approval of the Central Government
• With the written approval of the State Government or , no Court may consider any offense allegedly committed by
the District Magistrate [Section 217(3)], a Court may any member of the armed forces of the Union while acting
take cognizance of the criminal conspiracy offense under or ostensibly acting in the course of their official duties.
Section 47(2) of the Bharatiya Nyaya Sanhita, 2023 (apart
from criminal conspiracy to commit an offense punishable Clarifications on Official Duty
by death, life imprisonment, or rigorous imprisonment of
A public servant must have performed the act or omission
two years or more).
as part of their official duty, which must also be official in
However, for the cognizance of any criminal conspiracy under nature, and it must have been done during the course of
Section 215 of BNSS, no such consent shall be necessary. their employment.
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: In Choudhary Praveen Sultana v. State of West Bengal, AIR
The Supreme Court held that the grant of sanction is an 2009 SC 1404, the Supreme Court ruled that Section 197

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[now Section 218 of BNSS] cannot automatically cover Nyaya Sanhita, except upon a complaint made by some
any actions taken by public employees in the alleged person aggrieved by the offence.
performance of their official duties. A public servant cannot Exceptions to the General Rule:
claim the protection of Section 197 [now Section 218 of
• Where the aggrieved person is:
BNSS] if their authority is abused to carry out actions that
are otherwise illegal. ͵ A child who is of unsound mind or is having an
intellectual disability requiring higher support needs,
Underlying Object of Section 218 or due to sickness or infirmity is unable to make a
complaint.
The fundamental goal of Section 218 is to give the authorities
the ability to carefully consider the accusations made ͵ A woman who, according to local customs and
against public servants and to protect them from baseless, manners, ought not to be compelled to appear in
vexatious, or false prosecutions that are initiated with the public.
primary intent of embarrassing and harassing the accused In such cases, with the permission of the Court, some other
official. person may make a complaint on their behalf.
In Devendra Prasad Singh v. State of Bihar (2019), the • Where the aggrieved person is a husband serving in the
Supreme Court ruled that an offense against a government armed forces, some other person on his behalf may make
officer must be related to the performance of their official a complaint.
duties in order for Section 197 [now Section 218 of BNSS] to • Where the wife is aggrieved by an offence under Section
be strictly applied . 82 of Bharatiya Nyaya Sanhita, the complaint may be
The Supreme Court ruled in CBI v. B.A. Srinivasan, (2020) 2 made on her behalf by:
SCC 153, that public servants are entitled to protection under ͵ Her father, mother, brother, sister, or
Section 197 [now Section 218 of BNSS] when the offense is
͵ Father’s or mother’s brother or sister, or
alleged to have been committed while they were acting or
ostensibly acting in the course of their official duties. Such ͵ With the leave of the Court, any other person related
acts are not protected if they are carried out with the office to her by blood, marriage, or adoption.
serving as a bare front for illegal gains. Section 219(6) provides that no Court shall take cognizance of
The Supreme Court noted in D. Devaraja v. Owais Sabeer an offence under Section 64 of the Bharatiya Nyaya Sanhita,
Hussan, (2020) 7 SCC 695, that Section 197 [now Section 2023, where such offence consists of sexual intercourse by a
218 of BNSS] is intended to shield public employees carrying man with his own wife, the wife being under eighteen years
out official duties from harassment by initiating pointless of age, if more than one year has elapsed from the date of
retaliatory criminal proceedings. An offense completely the commission of the offence.
unrelated to official duties would not need to be sanctioned.
In State of Himachal Pradesh v. M.P. Gupta, AIR 2004 SC Section 220 Prosecution of Offences
730, the Supreme Court ruled that it is neither feasible Under Section 85 of Bharatiya Nyaya
nor reasonable to establish a universal rule to ascertain Sanhita, 2023
whether an act is reasonably related to an official duty.
Examining whether the public servant would have been Section 220 provides that a Court can take cognizance of
held accountable for dereliction of official duty if they had offences under Section 85 of Bharatiya Nyaya Sanhita, 2023
failed to carry out the act in question would be a safe and in the following ways:
reliable test in this regard. If the response to this question is • Upon a police report.
in the affirmative, it can be claimed that the public servant • Upon a complaint made by:
committed this act while performing their official duties.
͵ The aggrieved person.
͵ Her father, mother, brother, sister, or
Prosecution for Offences Against Marriage
͵ Father’s or mother’s brother or sister.
[Section 219]
͵ Any other person related to her by blood, marriage, or
Section 219 provides that no Court shall take cognizance of adoption, with the leave of the Court.
offences punishable under Sections 81 to 84 of the Bharatiya

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Section 221 Prosecution of Offences Under Cognizance of Defamation by Court of

Section 67 of Bharatiya Nyaya Sanhita, Session [Section 222(2)]
2023 Section 222(2) provides that when any offence under
Section 356 of Bharatiya Nyaya Sanhita is alleged to have
Section 221 states that no Court will consider an offense been committed against a person who, at the time of such
punishable under Section 67 of the Bharatiya Nyaya Sanhita, commission, is:
2023, where the parties are married, unless the facts of the
• The President or Vice President of India,
offense are prima facie satisfied by a complaint filed or made
by the wife against the husband. • Governor of a State or Administrator of a Union Territory,
Section 219 Modifications: In Proviso (a) to Section 198(1) • Minister of the Union or State or Union Territory, or
of the CrPC, the phrase “under the age of eighteen years, • A Public Servant of the Union or State,
or is an idiot or lunatic” has been replaced with the phrase A Court of Session may take cognizance of such offence
“a child who is of unsound mind or is having intellectual without the case being committed to it, upon a written
disability requiring higher support needs.” complaint by the Public Prosecutor.
The Public Prosecutor shall make such a complaint with the
Prosecution of Defamation [Section 222] previous sanction of the State Government or the Central
Section 222(1) provides that no Court shall take cognizance Government.
of an offence under Section 356 of Bharatiya Nyaya Sanhita A Court of Session cannot take cognizance of an offence
except upon a complaint made by the aggrieved person. under Section 222(2) where the complaint is not made within
If the aggrieved person is: six months from the date of commission of the offence.
• A child, is of unsound mind, or is having an intellectual P.C. Joshi v. State of Uttar Pradesh, AIR 1961 SC 387: The
disability, or Supreme Court observed that the rationale for the special
procedure provided under Section 199(2) [now Section
• Due to sickness or infirmity, is unable to make a complaint,
222(2) of BNSS] is that the offence of defamation committed
or
against the functionaries mentioned therein is essentially
• A woman who, according to the local customs and an offence against the State as it relates to the discharge of
manners, ought not to be compelled to appear in public, public functions by State officials.
then, with the leave of the Court, any other person may
K.K. Mishra v. State of M.P., (2018) 6 SCC 676: The Supreme
make a complaint on behalf of the aggrieved person.
Court observed that to avail a remedy under Section 199(2)
and Section 199(4) [now Section 222(2) and Section 222(4)
Changes in Section 222
of BNSS], the statement must not only be defamatory, but
Words like “under the age of eighteen years, or is an idiot there must also be a nexus between the statement and the
or lunatic,” used in Proviso to Section 199(1) of CrPC, have discharge of public duties in the office.
been replaced by “a child or is of unsound mind or is having
intellectual disability” in Proviso to Section 222(1) of BNSS,
2023.

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|Page 118| Bharatiya Nagarik Suraksha Sanhita

Key Takeaways
Definition and Importance of Cognizance:
• Cognizance denotes the stage when a Magistrate or Court takes judicial notice of an offense to initiate proceedings.
• It is a prerequisite for valid trials and signifies the application of judicial mind.
Judicial Clarifications:
• Cognizance does not depend on the presence of the accused (Section 210 BNSS).
• Magistrates act against offenses, not merely individuals named in chargesheets (Raghu Bans Dubey v. State of Bihar).
Procedural Aspects:
• Cognizance is taken upon complaints, police reports, or information.
• Magistrates can order investigations under Section 175(3) before taking cognizance (Mohd. Yousuf v. Afaq Jahan).
Distinctions and Restrictions:
• Taking cognizance differs from the issuing process (State of Karnataka v. Pastor P. Raju).
• Courts cannot recall cognizance orders once taken (Bholu Ram v. State of Punjab).
Special Provisions under BNSS: a. Section 215 requires written complaints for offenses against public justice and contempt of public
servants.
• Section 217 mandates prior approval for offenses against the State.
Amendments in BNSS 2023: a. Section 210 expands the scope to include complaints under special laws and electronic police reports.
• Section 218 introduces a 120-day time limit for government sanction on prosecuting public servants.

Case Laws
• Bholu Ram v. State of Punjab, (2008) 9 SCC 140: According to established law, a Court can only take cognizance of an offense once,
and once it has done so, the Court is functus officio. The order of cognizance cannot be recalled.
• D. Lakshminarayana Reddy and Others v. Narayana Reddy and Others, AIR 1976 SC 1672: A case can only be considered instituted
in a Court when the Court takes cognizance of the offense alleged in Section 190 [now Section 210 of BNSS] and the Code’s scheme
[now BNSS].
• HDFC Securities Ltd. v. State of Maharashtra, (2017) 1 SCC 640: If the facts of the complaint do not reveal the commission of a
crime that can be prosecuted, the Magistrate is not required to take cognizance of the complaint.
• M/s Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, (2021): A Judicial Magistrate
may order a police investigation under Section 156(3) CrPC [now Section 175(3) of BNSS] without first requiring the complainant to
be examined under oath under Section 200 of the Code of Criminal Procedure [now Section 223 of BNSS].
• CBI v. B.A. Srinivasan, (2020) 2 SCC 153: Public servants are entitled to protection under Section 197 [now Section 218 of BNSS]
when the offense is alleged to have been committed while they were acting or ostensibly acting in the course of their official duties.
• K.K. Mishra v. State of M.P., (2018) 6 SCC 676: To avail a remedy under Section 199(2) and Section 199(4) [now Section 222(2) and
Section 222(4) of BNSS], the statement must not only be defamatory, but there must also be a nexus between the statement and the
discharge of public duties in the office.

One Liners
• Under BNSS Section 210(2): The Chief Judicial Magistrate may empower a Magistrate of the Second Class to take cognizance of
offences.
• Magistrate’s Power under Section 219: According to BNSS, a complaint can be made by another person if the aggrieved person is
a child, is of unsound mind, or has an intellectual disability requiring higher support needs, or is unable to make a complaint due to
sickness or infirmity.
• Section 221 mandates that a Court shall take cognizance of an offence punishable under Section 67 of BNS (sexual intercourse by a
husband upon his wife during separation) only upon a complaint made by the wife.
• Section 222 of BNSS: Cognizance of the offence of defamation can only be taken based on a complaint made by an aggrieved
person. Suo motu action is not permissible.
• Section 223 of BNSS specifies the limitation periods for taking cognizance of offences. For offences punishable with imprisonment
for a term of up to one year, the limitation period is one year from the date of the offence.
• Section 225 of BNSS states that no limitation period applies for taking cognizance of offences punishable with death, life
imprisonment, or imprisonment exceeding seven years.

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• Section 226 of BNSS establishes that the period of limitation for offences punishable with imprisonment not exceeding three years
is three years from the date of the offence.
• Section 229 of BNSS gives the Chief Judicial Magistrate authority to issue directions regarding cases involving subordinate
Magistrates.
• Section 232 of BNSS mandates that complaints by public servants acting in their official capacity must be filed within three months
from the date of the alleged offence.

Multiple Choice Question (MCQs)

Q. Which Chapter of BNSS contains provisions regarding conditions requisite for initiation of proceedings?
(a) Chapter XI (b) Chapter XVI
(c) Chapter XVIII (d) Chapter XVII
Answer: (a)
Q. Which of the following sections of the BNSS defines the term ‘Cognizance’?
(a) Section 208 (b) Section 209
(c) Section 210 (d) Not defined
Answer: (d)
Q. A Magistrate may take cognizance of an offence:
(a) On a police report, including a report submitted through electronic mode
(b) On a complaint
(c) On a complaint filed by a person authorized under any special law
(d) All of the above
Answer: (d)
Q. Under Section 211, the case will be transferred to:
(a) As may be specified by the Chief Judicial Magistrate
(b) As may be specified by the Magistrate taking cognizance
(c) As may be specified by the Sessions Judge
(d) As nominated by the High Court
Answer: (a)
Q. Which section of BNSS provides for making over the case by the Chief Judicial Magistrate to the Magistrates?
(a) Section 214 (b) Section 213
(c) Section 212 (d) Section 211
Answer: (d)
Q. Which one of the following is true about the Sessions Court?
(a) Can take cognizance without committal
(b) Can take cognizance only on committal
(c) Can take cognizance on the recommendation of the District Magistrate
(d) Can take cognizance provided the charge sheet is submitted by the Superintendent of Police
Answer: (b)
Q. Under Section 219 of BNSS, no Court can take cognizance of an offence against marriage unless a complaint is made
by:
(a) The police (b) The wife/husband
(c) Some person who is aggrieved by the offence (d) None of the above
Answer: (c)
Q. Which section of BNSS provides for the limitation period for taking cognizance of offences?
(a) Section 224 (b) Section 225
(c) Section 226 (d) Section 223
Answer: (d)

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