Changes In BNSS To S.156(3) CrPC Power, Cognizance Of Complaints Against Public Servants, Sanction To Prosecute

Opportunity of Hearing to Public Servant before taking cognizance on a complaint

According to Section 223 (2) of the BNSS, no cognizance can be taken by a magistrate on a complaint against a public servant for any offence alleged to have been committed in the discharge of official duties unless ttwin conditions are fulfilled. The bare text of Section 223 (2) reads as follows: -

“A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—

(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.”

Provision of “Deemed Sanction” Added

It is worthwhile to mention that the existing procedural law under Section 197 of Cr.P.C. doesn't contain a provision of 'deemed sanction' if the competent authority does not decide on the grant of sanction within a timeframe.

However, the new procedural law under proviso second to Section 218 (1) makes a provision of deemed sanction i.e., if a sanction is not received  to prosecute the public servant within 120 days, the sanction would be considered as deemed sanction to prosecute the public servant. The proviso reads as: -

“Provided further that such Government shall take a decision within a period of one hundred and twenty days from the date of the receipt of the request for sanction and in case it fails to do so, the sanction shall be deemed to have been accorded by such Government.”

Changes regarding procedure under Section 156(3) CrPC

The existing code under Section 156 (3) empowers the magistrate to order investigation by police officers upon a private complaint received under Section 190 of Cr.P.C. The new law has retained the provision with a modification that the order of investigation may be made by any magistrate empowered to take cognizance on private complaint upon firstly, making an inquiry on a complaint made by the complainant, and secondly, considering the submissions made by the police officer regarding the complaint made. The new provision Section 175 (3) of BNSS2 (akin to Section 156 (3) Cr.P.C.) reads as follows:

“Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.”

In other words, the new law requires the magistrate to make an inquiry itself after considering the complaint and to also take into consideration of the submission made by the police officer in this regard, before ordering investigation in a private complaint by a police officer. 

Secondly, the existing code under Section 156 doesn't have any special provision to deal with complaints against public servants. However, the new law BNSS, has made a provision to this effect, where Section 175 (4) reads as:

“Any Magistrate empowered under section 210, may, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, order investigation, subject to—

(a) receiving a report containing facts and circumstances of the incident from the officer superior to him; and

(b) after consideration of the assertions made by the public servant as to the situation that led to the incident so alleged.”

Thus, a police investigation on a private complaint against a public servant can be ordered only if the above twin conditions are fulfilled.

Such a modification in the new law seems to be inspired by the judgment of the Supreme Court in Anil Kumar v. M.K. Aiyappa which held that a Magistrate cannot order an investigation against a public servant while invoking powers under Section 156(3) CrPC without previous sanction.

However, the Supreme Court in Manju Surana v. Sunil Arora & Ors. doubted the correctness of the view taken Anil Kumar case and referred the question to be settled by a larger bench. The reference is pending. Although the new provision in BNSS (175(4) is not strictly requiring a sanction, it creates a new condition that a report of the senior officer should be obtained.

Also Read other articles on new criminal laws :

Pre-Cognizance Hearing Of Accused : Changes Under Bharatiya Nagarik Suraksha Sanhita (New CrPC) On Magistrate's Cognizance Of Complaints