1. COGNIZANCE OF OFFENCE
Taking cognizance constitutes the foundational prerequisite of a criminal trial, signifying the point at which a judicial officer officially takes notice or becomes aware of an alleged crime.
Although the Bharatiya Nagarik Suraksha Sanhita (BNSS) leaves the expression undefined, settled legal principles clarify that taking cognizance requires no formal procedural ritual; rather, it occurs whenever a Magistrate actively applies their mind to a suspected crime with the intent to initiate judicial proceedings or determine whether grounds for inquiry and trial exist under Sections 223, 225, or 227 BNSS.
Because cognizance attaches strictly to the offense rather than the specific offender, the court must be satisfied that the essential legal elements of the offense are present, and it may do so only once per crime before becoming functus officio.
Whether cognizance has occurred depends on the facts of each case.
If a Magistrate acts merely to facilitate an investigation, such as ordering a police investigation under Section 175(3) BNSS or granting a search warrant, they are taking investigative measures rather than exercising judicial cognizance.
(2) By whom.
Under Section 210 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the authority to take cognizance of offences is primarily vested in Judicial Magistrates of the First Class, who may take notice of a crime regardless of whether it occurred within their local territorial limits, as spatial jurisdiction becomes relevant only when initiating the subsequent inquiry or trial.
Second-Class Magistrates may exercise this power only when specifically authorized by the Chief Judicial Magistrate (CJM) for offences within their trial competence under Sections 210(1) and (2) BNSS.
Conversely, under Sections 210 and 213 BNSS, Courts of Session generally lack original jurisdiction to take direct cognizance unless a case is formally committed to them by a Magistrate.
The principal exception is under Section 222(2) and (5) BNSS, which allows a Sessions Court to take direct cognizance of an offence without prior committal when a written complaint for defamation against high dignitaries, such as the President, Vice-President, or State Governor, is submitted by a Public Prosecutor within six months of the alleged offence.
(3) Cognizance when taken
Under Section 210(1) BNSS [formerly Section 190(1) CrPC], a Magistrate may initiate criminal proceedings through three avenues: a private complaint, a police final investigation report under Section 193(3) BNSS, or independent information and personal knowledge.
Section 2(1)(h) BNSS defines a complaint as an oral or written allegation intended for judicial action rather than police processing, though an investigation that discloses only a non-cognizable offence is legally reclassified as a complaint.
When evaluating these materials, Magistrates retain judicial discretion.
As established in Dharam Pal v. State of Haryana, they are not bound by police conclusions and may summon unarrested or omitted individuals, evaluate protest petitions, or ignore negative police findings where the record indicates a prima facie case.
However, the term “may” in Section 210 BNSS means that Magistrates are not obligated to take immediate cognizance and may instead order a police investigation under Section 175(3) BNSS [formerly Section 156(3) CrPC].
Crucially, once a Magistrate takes cognizance and issues summons or process, they lack authority to recall or revoke that order.
An application to the High Court under its inherent quashing powers (Section 528 BNSS / Section 482 CrPC) is therefore the legal remedy for addressing defective orders.
(4) Transfer of case.
When a Magistrate takes cognizance of an offence based on personal knowledge or non-police information under Section 210(1)(c) BNSS, Section 211 BNSS provides a mandatory safeguard requiring the court to inform the accused—before taking any evidence—of their statutory right to have the matter tried or inquired into by a different Magistrate.
If the accused objects to continuing before the initiating Magistrate, the Chief Judicial Magistrate (CJM) must transfer the case to another court.
Failure to provide this notification or refusal of a valid transfer request constitutes a fatal legal flaw that vitiates the trial and cannot be remedied under Section 511 BNSS.
Separately, Section 212 BNSS empowers the CJM or an authorized First Class Magistrate to reassign cases to another competent Magistrate for administrative reasons, provided that cognizance of the offence has already been formally taken.
(5) Time limitations.
A Magistrate’s power to take cognizance of an offence is strictly bounded by statutory time frames, requiring judicial action to be initiated within the limits prescribed by law.
These boundaries ensure that criminal proceedings are brought without unexcused delay, as detailed in Sections 513 to 519 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which govern limitation periods, commencement dates, and exceptions for taking cognizance.
(6) Restraints on taking cognizance.
Under general criminal jurisprudence, any individual can initiate legal proceedings by filing a complaint, regardless of whether they are personally aggrieved by the offense.
However, a Magistrate’s otherwise broad jurisdiction to take cognizance under Section 210 BNSS is restricted by Sections 215 to 222 BNSS, which impose statutory limitations designed around key public policy considerations, such as requiring prior sanctions or specific complaints for certain categories of crimes.
2. LIMITATIONS ON THE POWER TO TAKE COGNIZANCE OF AN OFFENCE
While Section 210 BNSS outlines the general rule granting Magistrates broad authority to take cognizance of criminal offenses, Sections 215 to 222 BNSS establish critical statutory limitations and exceptions to this power.
These restrictive provisions act as legal preconditions designed to filter prosecutions in specific, sensitive categories of crimes—such as offenses against public justice, state security, public servants, or marriage—by requiring mandatory prerequisites like a formal written complaint from a designated authority or prior administrative sanction before a court can validly initiate proceedings.
(1) Prosecution for contempt of lawful authority of public servants.
Under Section 215(1)(a) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), courts are strictly barred from taking cognizance of offenses involving contempt of the lawful authority of public servants—such as disobeying summonses or furnishing false information under Sections 206 to 223 (excluding Section 209) of the Bharatiya Nyaya Sanhita (BNS)—unless a written complaint is formally lodged by the concerned public servant, their administrative superior, or an authorized officer.
Designed to shield individuals from vexatious or vindictive prosecutions by private complainants, Section 215(2) BNSS further allows a superior administrative authority to order the withdrawal of such a complaint prior to the trial’s conclusion, immediately halting judicial proceedings.
Courts are strictly prohibited from circumventing these mandatory requirements through legal artifice or reclassifying acts under non-restricted penal provisions; however, if a single act simultaneously constitutes two distinct offenses—one falling within Section 215 BNSS and the other outside it—an aggrieved private party remains entitled to file a separate complaint for the latter under general cognizance provisions.
(2) Prosecution for offences against public justice and for offences relating to documents given in evidence.
Section 215(1)(b) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) restricts courts from taking cognizance of offences affecting public justice, such as perjury, fabrication of evidence, or submission of forged documents, unless a formal written complaint is lodged by the affected court, an authorized court officer, or its superior appellate court.
This provision prevents private litigants from initiating retaliatory or vexatious prosecutions and preserves the authority of judicial institutions.
Under Section 215(3) BNSS, courts include Civil, Revenue, and Criminal Courts, along with statutory tribunals, with subordination determined by appellate hierarchy under Section 215(4) BNSS.
Superior courts, including High Courts exercising powers of superintendence, may intervene or initiate complaints suo motu to preserve the administration of justice.
In cases involving alleged document forgery during court proceedings, external courts cannot entertain private complaints before a determination by the presiding court, preventing conflicting judicial findings.
Procedurally, Section 215(1)(b) BNSS operates alongside Section 379 BNSS, under which a court may file a formal complaint on its own initiative or upon application after determining that an offence appears to have been committed and prosecution serves the interests of justice.
Decisions regarding such complaints are appealable under Section 380 BNSS.
(3) Prosecution for offences against the State.
Under Section 217 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), courts cannot take cognizance of offenses committed against the State, public harmony, or national sovereignty—such as treason, promoting communal enmity, or outraging religious feelings under Chapter VII and Sections 196, 299, or 353(1) of the Bharatiya Nyaya Sanhita (BNS)—without prior sanction from the Central or State Government.
For related offenses under Sections 197, 353(2), or 353(3) BNS, sanction may also be granted by the District Magistrate.
This restriction prevents unauthorized or politically motivated prosecutions by private individuals, ensuring that cases affecting public order are brought solely under governmental oversight.
Obtaining this sanction is an indispensable condition precedent; to evaluate whether to grant it, the competent authority may order a preliminary inquiry by a police officer of the rank of Inspector or higher, who possesses standard investigative powers excluding warrantless arrest.
(4) Prosecution for the offence of criminal conspiracy.
Under Section 217(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a court is prohibited from taking cognizance of minor criminal conspiracies punishable under Section 61(2) BNS, specifically those aimed at committing offences carrying a penalty below two years of rigorous imprisonment, without the written consent of the State Government or District Magistrate.
This restriction curbs frivolous private complaints over petty disputes and reserves criminal proceedings for matters of genuine public interest.
However, conspiracies involving serious offences punishable by death, life imprisonment, or rigorous imprisonment of two years or more are exempt from this requirement.
Where a conspiracy involves contempt of public servants or offences against administration of justice governed by Section 215 BNSS, executive consent is unnecessary because the formal written complaint of the concerned public official or court takes precedence.
To ensure informed decision-making, Section 217(4) BNSS empowers the State Government or District Magistrate to direct a preliminary police investigation before granting consent for prosecution.
(5) Prosecution of judges and public servants.
Under Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), prior government sanction is a mandatory prerequisite before courts can take cognizance of alleged offences committed by serving or retired judges, Magistrates, and public servants who are removable only with government sanction, provided the act was done while acting or purporting to act in official duty.
This protection shields officials from malicious, private, or post-retirement prosecutions, allowing them to perform public duties without fear.
Central or State Government approval is required depending on the authority under which the official serves.
To ensure timely decision-making, the government must decide on sanction within 120 days, failing which sanction is deemed to be granted.
However, this protection is waived for serious offences including sexual crimes against women, human trafficking, and dereliction regarding victim treatment under specific BNS provisions.
The rule requires a direct and coherent nexus between the act and official duties: acts such as taking a bribe or stealing from a patient are excluded as non-official conduct, while acts performed within duty parameters, such as government surgeons performing operations or research officers executing agreements, require sanction.
Public sector bank officers are excluded where they can be removed without government sanction.
(6) Prosecution of members of the Armed Forces.
Under Section 218(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), no court can take cognizance of an offence alleged against a member of the Union’s Armed Forces acting in the discharge of official duties without prior sanction from the Central Government.
Under Section 218(3) BNSS, State Governments may extend this protection by official notification to designated forces responsible for maintaining public order, with the State Government becoming the sanctioning authority.
Furthermore, Supreme Court precedent establishes that sanction to prosecute under Section 151 BNSS (formerly Section 132 CrPC) cannot substitute for sanction to take cognizance under Section 218 BNSS (formerly Section 197 CrPC).
Both sanctions must be obtained independently because of their distinct legal scope, character, and statutory purposes.
(7) Prosecution for offences against marriage.
Section 219 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) restricts court intervention in marital offenses under Sections 81 to 84 of the Nyaya Sanhita, 2023—including bigamy, fraudulent marriage, and enticing a married woman—by requiring a direct complaint from an aggrieved person or an abettor/attempter involved, primarily to protect private family affairs from unwanted external interference.
While Section 84 BNS restricts standing exclusively to the husband, statutory exceptions allow third-party complaints with court permission if the victim is a child, suffering from illness or intellectual disability, or constrained by local customs regarding public appearances, requiring mandatory notice to any official legal guardian.
Additionally, serving Armed Forces personnel unable to secure leave may delegate complaint filing through a written, certified authorization countersigned by their Commanding Officer, while a wife aggrieved by bigamy under Section 82 BNS is granted broad support, enabling parents, siblings, children, extended family, or court-permitted relatives to initiate criminal proceedings on her behalf.
(8) Prosecution for the offence of subjecting a married woman to cruelty.
Under Section 220 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a court may take cognizance of the offense of subjecting a married woman to cruelty under Section 85 of the Nyaya Sanhita, 2023 through a police report; however, if proceedings are initiated via a private complaint, strict locus standi rules apply.
To prevent unwarranted interference by third parties, the court is legally barred from entertaining private complaints unless filed directly by the aggrieved woman, her parents, her siblings, or her maternal/paternal uncles and aunts.
Other individuals related to the victim through blood, marriage, or adoption may only file a complaint if special leave is explicitly granted by the court.
(9) Prosecution of a husband for the rape of his minor wife.
Under Section 219(6) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a strict statutory limitation period is imposed on the judicial prosecution of a husband for the rape of his minor wife under Section 64 of the Nyaya Sanhita, 2023.
Specifically, no court is permitted to take cognizance of an offense consisting of sexual intercourse by a husband with his wife who is under 18 years of age if more than one year has elapsed from the exact date the act was committed.
This provision balances statutory rape protections for minor spouses with a limited 1-year time window within which legal proceedings must be formally initiated.
(10) Prosecution of a husband for having non-consensual sexual intercourse with his wife during separation.
Under Section 221 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), strict legal conditions govern the prosecution of a husband for non-consensual sexual intercourse with his wife during separation under Section 67 of the Nyaya Sanhita, 2023.
A court is legally prohibited from taking cognizance of this offense unless proceedings are initiated directly upon a private complaint filed by the wife herself, excluding third parties or external relatives.
Furthermore, to protect against groundless allegations, the provision requires the court to be satisfied prima facie of the facts constituting the offense before entertaining the case.
(11) Prosecution for defamation.
Under Section 222 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), criminal defamation punishable under Section 356 of the Nyaya Sanhita, 2023 generally requires a direct complaint by the aggrieved individual, a procedural safeguard upheld as constitutionally valid in Subramanian Swamy v. Union of India.
Two primary exceptions apply to this rule: first, where an aggrieved person is unable to file due to age, illness, mental/intellectual disability, or customary public restrictions, another party may do so with court permission; second, where high dignitaries—such as the President, Vice-President, Governors, Ministers, or public servants—are defamed regarding their official conduct, a Sessions Court may directly take cognizance upon a written complaint filed by a Public Prosecutor.
To execute this special process, which aims to protect public confidence in administration, the Public Prosecutor must obtain prior sanction from the Central or State Government and submit detailed facts within a strict six-month limitation period, while still preserving the affected dignitary’s independent right to file a private complaint before a Magistrate.