Drafting a Private Complaint to a Magistrate Under the Bharatiya Nagarik Suraksha Sanhita, 2023

By LegalInk Editorial · 2026-09-08

Drafting a Private Complaint to a Magistrate Under the Bharatiya Nagarik Suraksha Sanhita, 2023

A private complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the mechanism by which a Magistrate takes cognizance of an offence on a complaint, as distinct from a police report. That section expressly authorises this route, and its proviso now requires the Magistrate to give the accused an opportunity of being heard before taking cognizance in certain cases. Getting the complaint document right from the outset is therefore both a procedural and a tactical matter.

What Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 Actually Says

Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 sets out the bases on which a Magistrate may take cognizance of an offence, including on a complaint made by any person. A private complaint falls under this head, as distinct from cognizance on a police report.

The proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 introduces a procedural step absent in the earlier code: before a Magistrate takes cognizance on a complaint against a public servant acting or purporting to act in the discharge of official duties, the accused must be given an opportunity of being heard. Flag this at the drafting stage so the client is prepared for a pre-cognizance hearing before the complaint proceeds.

Cognizance vs. Issuance of Process

Taking cognizance and issuing process are distinct acts. The Magistrate first takes cognizance under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and only thereafter examines whether process should issue. Conflating the two is a common drafting error: the complaint should be structured to satisfy the cognizance threshold, not written as if the summons is already guaranteed.

The Examination of the Complainant: Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023

Once a complaint is filed and before the Magistrate proceeds further, Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires the Magistrate to examine the complainant and any witnesses present, on oath. The substance of the examination and the signatures or marks of the complainant and witnesses must be reduced to writing and form part of the record.

This examination is not a formality. Magistrates use it to assess whether the allegations disclose a prima facie case. Drafting with the examination in mind means ensuring every material averment in the written complaint can be substantiated in oral examination — discrepancies between the written complaint and the sworn deposition have derailed otherwise sound complaints.

Implications for the Witness List

The complaint must include a list of witnesses whose examination you anticipate under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Witnesses listed and present at the time of examination become part of the initial record. Witnesses omitted at this stage may be added later only with the Magistrate's leave, which introduces delay and can weaken credibility.

The list should be specific: full names, addresses, and a brief description of what each witness deposes to (documentary custodian, eyewitness, expert, and so on). Vague entries such as "witness as required" serve no one.

Structure of a Private Complaint Under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023

A well-structured complaint follows a conventional format that satisfies both the statutory requirements and the Magistrate's practical expectations.

Standard Complaint Format

Before the Court of the learned [Designation] Magistrate, [Place]

Complaint No. ___ of 20__

In the matter of: [Complainant's full name, address, and description] — Complainant

versus

[Accused's full name, address, and description] — Accused

Complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023

The body should then proceed in numbered paragraphs:

1. Jurisdiction: A brief statement establishing why the court has territorial and subject-matter jurisdiction.
2. Identity of parties: The complainant's relationship to the matter; a precise description of the accused sufficient for service.
3. Narration of facts: A chronological account of the events giving rise to the offence. Each paragraph should address one incident or one element. Narrate facts; avoid argument here.
4. Offence alleged: A clear statement of the offence committed, referencing the relevant penal provision. Do not crowd multiple offences into a single sentence.
5. Prayer: The relief sought — typically, that the Magistrate take cognizance, examine the complainant and witnesses under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and thereafter issue process.
6. List of witnesses: Full particulars as described above.
7. List of documents: Documents relied upon, preferably annexed and serially marked.
8. Verification: A clause confirming the contents are true to the complainant's knowledge and belief.

The complaint must be signed by the complainant. Where the complainant is a company or body corporate, the authorised representative must file a board resolution or authorisation letter with the complaint.

The Pre-Cognizance Hearing Under the Proviso

Where the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is triggered — particularly in complaints against public servants — file a written note of arguments alongside the complaint setting out why cognizance is warranted. This does not pre-empt the hearing; it gives the Magistrate a structured basis on which to conduct it. Preparation for this hearing is as important as the complaint itself.

Common Drafting Errors to Avoid

• Mixing argument with fact: The narration section is not the place for legal submissions. Submissions belong in a separate memo or are made orally.
• Insufficiently described accused: Service will fail if the accused cannot be identified with precision from the complaint.
• No documentary support for factual averments: Attach whatever is available at filing. Documents surfacing later require a separate application.
• An overloaded prayer: Keep it concise — cognizance, examination, and process. Elaborate prayers invite objections.
• Witness list as an afterthought: The list under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is a substantive part of the record, not an appendix.

Drafting Support

Advocates preparing these filings can use LegalInk's custom drafting tool to generate a jurisdiction-specific complaint structure, or the brief generator to prepare the supporting note of arguments for the pre-cognizance hearing. Both are available at legalink.co.in.

Frequently Asked Questions

Is a private complaint under Section 223 different from an FIR?

Yes. An FIR is lodged with the police and triggers investigation. A private complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is filed directly before a Magistrate, who takes cognizance without necessarily directing a police investigation first.

When is the accused entitled to be heard before cognizance is taken?

The proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires an opportunity of hearing before cognizance in cases involving public servants acting in their official capacity. This is not a universal right in every private complaint.

What happens if the complainant is not present for examination?

Under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Magistrate must examine the complainant on oath before proceeding. If the complainant is absent, the step cannot be completed and the matter will be adjourned. Repeated absence can lead to dismissal for default.

Can a complaint be filed through an advocate without the complainant appearing personally?

The examination under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires the complainant personally — not the advocate — to be examined on oath. The advocate can file the written complaint, but the complainant must appear before the Magistrate can proceed to take cognizance.

Statute citations in this article are verified against LegalInk's verified law registry before publication. Always confirm the current text of any provision before relying on it.

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