Private Criminal Complaint Under the BNSS, 2023: Procedure for Assault or Criminal Force Cases:
Abstract:
What legal remedies are available if a police officer refuses to register your complaint? What legal rights are available to a person whose grievance remains unaddressed? These are some common questions which may arise in the mind of an individual who seeks to report a crime but faces a refusal by the police to register the complaint. The Bharatiya Nagarik Suraksha Sanhita, 2023, recognizes this issue and provides a procedure regarding the refusal to register complaints by police officers. The law contemplates a mechanism for receiving complaints and directing an inquiry or investigations in accordance with the law. In such cases where an individual is met with a refusal by a police officer, they can lodge a complaint to the Magistrate. The BNSS empowers the Magistrate to take cognizance of such complaints, initiate a trial, and direct an investigation in accordance with the law. This article aims to explain the meaning of a complaint, the procedure of filing a private criminal complaint, Assault and Criminal Force, essential components of drafting a complaint, and landmark cases.
Background and Legal Framework
Definition of Complaint and Procedure for Taking Cognizance by the Magistrate
• Section 2(1)(h) defines a complaint as an oral or written allegation made to the Magistrate requesting legal action against a person, whether known or unknown, who has committed an offence. It further states that a mere police report is not a complaint. However, after investigation, if a police officer submits a report disclosing the commission of a non-cognizable offence, the report shall be treated as a complaint. The police officer who submitted that report shall be treated as the complainant before the Magistrate.
Section 210: Cognizance of Offences by Magistrate:
This section empowers the Magistrate of the First Class and the Magistrate of the Second Class to take cognizance suo motu, police reports and complaints. The Chief Judicial Magistrate may empower the Magistrate to try and inquire into offences within the jurisdiction.
Procedure for Examination of Complainant and Process of Issuing Summons and Dismissal of Complaints.
Section 223: Examination of Complainant:
(1) Under this clause, when the Magistrate having jurisdiction takes cognizance of any complaint, the Magistrate examines the complainant and witnesses on oath. Additionally, the information received after such an examination must be recorded in writing and signed by the Magistrate, the complainant, and the witnesses.
Provided that when the complaint is in writing and the complainant is a public servant, a court, or the case is transferred to another Magistrate under Section 212 BNSS, the Magistrate need not examine such complainant and witnesses.
(2) This clause safeguards the rights and provides a shield to protect public servants from unnecessary prosecution while mandating that the court must give an opportunity to the public servant to be adjudicated and explain the incident and must receive the superior officer’s report.
Section 224: This section explains the procedure followed by a Magistrate who is not competent to take cognizance of a complaint. If it is a written complaint, the Magistrate shall return it to the proper court for adjudication, and if it is not a written complaint, the Magistrate shall direct the complainant to the proper court.
Section 225: This section provides the reasons a Magistrate can postpone issuing summons or warrants against an accused for the purpose of evaluating the existence or non-existence of sufficient grounds. The grounds are written as follows:
1. It mandates that the Magistrate postpone the issuance of process if the accused resides beyond the territorial jurisdiction of the Magistrate’s court. They can conduct an inquiry themselves or direct a police officer to investigate.
2. In case an accused is within the territorial jurisdiction, the Magistrate has a discretionary power to postpone the issue of process.
3. A magistrate cannot direct an investigation when the offense is triable in the Court of Session, and the complaint is filed by a public servant.
Section 226: After considering the statements of the complainant and the witnesses, if the Magistrate finds that there are insufficient grounds for proceeding, then shall dismiss the complaint and shall briefly record the reasons for doing so.
Understanding the Offence of Assault and Criminal Force under the BNS:
Section 129 BNS: Criminal Force: A person is said to use criminal force when he intentionally uses force against another person without that person’s consent, knowing that such use of force is likely to cause injury, fear, or annoyance. Such conduct is defined as criminal force under this section.
Illustration:” A” intentionally throws hot coffee across “B”s face. Here “A” intentionally uses force on “B” without “B”s consent knowing that it will likely cause injury to “B”. “A” has used criminal force.
Section 130 BNS: Assault: A person making any gestures or any preparation intentionally and knowingly that such gesture and preparation will cause any person present to apprehend that such person making gestures and presentation is about to use criminal force against the present person is said to commit an assault.
Illustration: “A” raises and swings a wooden stick toward “B” with the intention and knowledge that such an act will cause “B” to apprehend that “A” will strike “B”. “A” has committed an assault.
Section 131 BNS: Punishment for Assault or Criminal force: Any person who uses assault or criminal force against another person shall be punished with imprisonment of either description for a term of 3 months and a fine of 1000 rupees or both.
Grave and sudden provocation will not reduce the term of the punishment in the following conditions:
1. If the provocation is voluntarily and intentionally caused by the offender to commit an offence.
2. When the provocation is caused by lawful exercise or legal act.
3. The provocation was caused by someone acting in private defence.
Assault and Criminal Force Against Women:
Section 74 BNS: Any person who intentionally or knowingly uses criminal force, or assaults, a woman and intends to outrage her modesty shall be punished with imprisonment of either description for a term of 1 year, which may increase to 5 years and shall also be liable to fine.
Section 76 BNS: Any person who intentionally or knowingly uses criminal force or assaults a woman and intends to disrobe her shall be imprisoned for a term of 3 years which extends to 7 years of either description and shall also be liable to fine.
Constitutional Background:
While the Constitution of India guarantees fundamental safeguards such as Article 14 (Equality before law) and Article 21 (Protection of Life and Personal Liberty) the judiciary acts as the interpreter and ensures access to justice when state mechanisms fail.
Article 14 and 21 of the Constitution are linked as they provide the constitutional basis for a fair trial as they treat citizens equally before the law and protect personal liberty. Together, these guarantee the right to a fair trial and access to justice as a primary right. Judicial precedents and judgments have interpreted access to justice and the right to approach the court when police refuse to register a complaint, Article 21 and Article 14, ensure the right to a fair, just, and a reasonable trial.
Procedure for Filing a Private Criminal Complaint for Assault and Criminal Force:
Before filing a private criminal complaint before the Magistrate, there are certain essential requirements that any person must know:
1. Attempt to register FIR: The complainant before filing a complaint before the Magistrate must attempt to lodge an FIR at a police station under Section 173(1) of BNSS, which may be given in writing, orally, or can be communicated through an electronic medium.
2. Upon refusal by local police station: An aggrieved person must send the information in writing and by post to the Superintendent of Police under Section 173(4) of the BNSS.
3. Cognizance of Offence by the Magistrate After Exhausting Alternative Remedy: The Magistrate, under Section 210 of the BNSS, may take cognizance of a complaint, police report, or complaint filed under any special law.
4. Appropriate Jurisdiction: Jurisdiction indicates the location where the crime was committed and helps the Court determine whether it has the authority over that territory, Jurisdiction reduces severe delays and outlines that the complaint is one done where the law mandates, not where it is personally convenient.
5. Draft the complaint: The complaint shall be drafted with legal assistance, and it shall provide all the necessary details of the complainant and the accused, which must include:
Party details: Names, addresses, and details of both the complainant and the accused.
Statement of facts: a clear, concise, and precise statement of the incident.
Date, time, and exact location where the incident was committed.
Prayer: Requesting the Magistrate to register the complaint, direct an investigation, and conduct a trial.
6. Gather Supporting Documents:
If any relevant proofs are available, they must be annexed to the complaint such as photographs of injuries, medical reports, surveillance footage, pictures and video recordings, emails, and call recordings.
Identity proof: Copies of Aadhaar card and PAN card
7. Complaint filing in court and submitting fees: The written complaint must be filed before the court, with all the documents and the nominal fees must be paid.
8. Commencement of preliminary examination: Section 223 BNSS: The magistrate shall provide a date on which the complainant and their witnesses need to be present for examination under oath.
9. Dismissal of complaint Section 226 BNSS: If insufficient grounds exist, the magistrate shall dismiss the complaint and state the grounds for doing so.
10. Issue of process: Section 227 BNSS: When the Magistrate is satisfied and sufficient grounds exist and the Magistrate has reasons to believe that offence occurred, they shall issue a summons or a warrant to direct the accused’s presence before initiation of trial.
Essential components of drafting a criminal complaint:
A private criminal complaint is a formal allegation made to a Magistrate for him to take cognizance. But there are certain elements that are necessary to add while drafting a complaint.
1. Designation of the Magistrate: It is crucial to understand which offense comes under which Magistrate’s jurisdiction to prove that the complaint has been written under the correct Magistrate’s designation.
2. Location: the location and city where the complaint is made must be clearly stated and written accurately to avoid dismissal.
3. Details of complainant and accused: Names, addresses, mobile numbers, email addresses must be written, and all information must be provided.
4. Offence committed: The committed offence shall be stated within the statement of facts for initiation of trial.
5. Facts of the case: The facts must specify a concise sequence of events including date, time and place of the event, along with the actions of the accused, the spectators of the event, witnesses.
6. Jurisdiction: State facts regarding the jurisdiction of the offense to prove to the court that the offense has occurred within locality and falls under court’s limit.
7. Police action: Mention if any were steps taken by the police officer and specify if the police refused to register your complaint.
8. List of documents: Attach all the important documents such as identity proofs and medical records, photos and videos of the incident.
9. List of witnesses: Provide the names and details of the witnesses for examination.
10. Prayer: Request the magistrate to take cognizance, direct investigation in accordance with the law.
Landmark case laws:
Case laws regarding private criminal complaints:
Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 S.C.C. 287: The court held and laid down certain structured procedures to reduce the abuse of judicial process and said that any application filed before a Magistrate under Section 156(3) of CrPC must be attached with an affidavit and before approaching the Magistrate the person must use all their remedies. The court also stated and bound the Magistrate to carefully structure judgments, and they are expected to exercise their judicial mind while scrutinizing such applications. It is crucial to reduce unnecessary burden and false complaints while maintaining the equality of law and rights of both parties.
Lalita Kumari v. Gov’t of U.P., (2014) 2 S.C.C. 1: A landmark judgement by the Supreme court of India mandating the police officers to register FIR in cognizable offences and they have no discretion to conduct a preliminary inquiry before registering an FIR in such cases. Officers refusing to register FIR in such cases shall face Departmental disciplinary Actions against them and all the information must be maintained and recorded in General diary
Sakiri Vasu v. State of U.P., (2008) 2 S.C.C. 409. : The court held that before filing a writ petition directly to the High Court an aggrieved person must exhaust all their remedies and the Magistrate power is not limited to order police to register FIR they can direct investigation and inquire themselves. Such applications directly filed before the High Court without following the procedure must be rejected by the court.
Deevarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 S.C.C. 252 : This case defines what exactly is taking Cognizance by a Magistrate and post-cognizance and pre-cognizance merely transferring a complaint to a local police station does not mean that the trial is initiated when Magistrate allows the examination of complainant and issue summons it refers as post-cognizance.
Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 S.C.C. 749 : The case provides legal protections and states that the judicial officer must briefly scrutinize complaints before issuing summons and clarified that it does not restrain the complainant to file before the high court just because an alternative remedy exists as it is the jurisdiction of the court to decide whether to provide such remedy or not.
Case laws covering Assault and Criminal force:
Bhupinder Singh and Another v. State of Punjab 1997: In this case the court defined the act of criminal offense that the use of force or criminal force does not need to cause actual physical harm to a person if the essential ingredients are satisfied causing fear, annoyance, and deterring a public servant, and intention is there then such an act becomes criminal force.
Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560: The Court held that assault in cases of sexual offences, knowingly holding her hand and taking her in a secluded bush without her consent is outraging her modesty and is an example of criminal force and assault against her. The act causes apprehension in the woman.
Frequently Asked Questions: (FAQs):
1. What is a private criminal complaint under BNSS?
An oral or written allegation made to the Magistrate requesting the Magistrate to take cognizance of an offence committed by a person is a private criminal complaint. It is a legal remedy provided when a police officer refuses to register the report.
2. How long does the procedure of filing a private criminal complaint usually take?
The BNSS does not define a fixed time limit for disposal of private criminal complaints, so the time depends on the discretion of the court.
3. What happens after the complaint is filed?
After the complaint is filed, the Magistrate examines the complainant and the witnesses on oath under Section 223 of BNSS. If sufficient grounds do not exist, the magistrate may dismiss the complaint under Section 226 of BNSS.
4. What are the required essential documents?
There are certain documents which are required to file a complaint, such as identity proofs, medical reports, copies of complaints submitted to the police, a list of witnesses, and other documents providing facts of the case.
5. Can complaints be filed online?
Yes, police complaints may be filed online, but private criminal complaints before a Magistrate depend on the Court’s E-filing rules.
6. Difference between FIR and private complaints?
FIR is an information which is given to the police office regarding a commission of an offence and a private complaint is written allegation requesting the Magistrate to take Cognizance of an offence.
CONCLUSION:
A private criminal complaint is a legal remedy provided to every citizen to ensure the protection of their legal right and acts as an alternative when an officer refuses to register complaints. While the Constitution accompany it with Articles providing equality before law, right to life and personal liberty, and personal liberty under this is asking for the right to take measures against the genuine offence and also balancing the rights of the accused if he is falsely alleged to commit a crime. The legal intent behind this provision is to stipulate equality of being heard for the complainant as well as the accused. Moreover, it authorizes judicial officers to use their judicial minds before writing an order and providing reasons for doing so. At the same time, a structured procedure is laid down for the examination of the complaint, dismissal of the complaint, and issue of summons/warrants. The courts in their interpretation subsequently said that the judicial officers must follow procedures to reduce arbitrary inaction, misuse of power by the officials who have the duty to save our rights and us.
For offences such as assault and criminal force, a complaint shall consist of all the facts, and it shall include all the essential elements listed under BNS. There must be a submission of relevant evidence; Ultimately, the objective of private criminal complaints under such cases is to provide an alternative remedy to preserve their right to seek justice and get a fair hearing as well as a fair trial, and that will reflect the concept of natural justice.
The BNSS ensures access to justice and provides procedures while ensuring judicial oversight which acts as a safeguard against voluntary inaction of the police.
References:
Statutes:
1. The Bharatiya Nagarik Suraksha Sanhita, 2023
2. The Bharatiya Nyaya Sanhita, 2023
3. The Constitution of India
Case Laws:
1. Priyanka Srivastava v. State of U.P. (2015) 6 SCC 287
2. Bhupinder Singh v. State of Punjab, (1998) 8 SCC 90.
3. Tarkeshwar Sahu v. State of Bihar.
4. Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 S.C.C. 749
5. Deevarapalli Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 S.C.C. 252
6. Sakiri Vasu v. State of U.P., (2008) 2 S.C.C. 409.
7. Lalita Kumari v. Gov’t of U.P., (2014) 2 S.C.C. 1
Author: Varonica Chaturvedi
Legal writer and researcher