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

A Opportunity of Hearing to Public Servant before taking cognizance on a complaint According to Section 223 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 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— such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and 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. 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 CrPC The existing code under Section 156 empowers the magistrate to order investigation by police officers upon a private complaint received under Section 190 of 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 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. However, the new law BNSS, has made a provision to this effect, where Section 175 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— receiving a report containing facts and circumstances of the incident from the officer superior to him; and 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.