Drafting of Criminal Complaint Under Section 200 CrPC / Section 223 BNSS →

A private criminal complaint is the most demanding pleading in an Indian advocate's repertoire: it sets a coercive State machinery in motion against a named individual on the strength of one citizen's word, and it must do so without the procedural cushioning a civil plaint enjoys. Under Section 200 of the Code of Criminal Procedure, 1973 (now mirrored, with a decisive change, in Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023), a Magistrate who proposes to take cognizance on a complaint must examine the complainant and the witnesses present upon oath. The draftsman therefore writes not for a clerk but for a judicial mind that will test the document, interrogate its author, and decide whether process should issue. This article maps the anatomy of that complaint, the statutory scheme around it, the verification and examination-on-oath requirements, and the single most consequential reform of the BNSS — the proviso that now requires the accused to be heard before cognizance is taken.

What a "Complaint" Is — and Is Not

Before drafting, the advocate must know precisely what the word "complaint" carries in law, because the definition controls both form and forum. Under Section 2(d) of the CrPC — re-enacted as Section 2(1)(h) of the BNSS — a complaint is "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report." Three features of this definition discipline the draftsman. First, the allegation must be addressed to a Magistrate and must seek action under the Code; a letter to the police is not a complaint. Second, it may name an unknown offender, so the draft need not always identify the accused. Third, and critically, it excludes a police report — meaning the complaint procedure and the police-investigation channel are mutually exclusive entry points into the criminal process.

This exclusivity is why the very first drafting decision is jurisdictional rather than stylistic: does the matter proceed as a complaint under Section 200/Section 223, inviting examination on oath and a possible inquiry, or as an application under Section 156(3) CrPC seeking a direction to register an FIR? The two are not interchangeable, and choosing the wrong vehicle is a drafting failure that no amount of eloquence repairs. The same precision-of-pleading discipline that governs civil drafting — see our note on the fundamental rules of pleading — applies here, only with higher stakes, because the document can deprive a person of liberty.

The Statutory Scheme: Sections 200 to 204 CrPC

A criminal complaint does not stand alone; it is the first move in a tightly choreographed sequence that the draftsman must anticipate. Section 200 requires the Magistrate, on taking cognizance on a complaint, to "examine upon oath the complainant and the witnesses present, if any," and to reduce the substance of that examination to writing, signed by the complainant, the witnesses and the Magistrate. Section 202 permits the Magistrate, after that examination, to postpone the issue of process and either inquire into the case himself or direct an investigation, "for the purpose of deciding whether or not there is sufficient ground for proceeding." Section 203 empowers dismissal of the complaint if there is no sufficient ground, while Section 204 governs the issue of process where there is. The corresponding BNSS provisions are Sections 223, 225, 226 and 227.

The Supreme Court synthesised this scheme in S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241, explaining that Sections 200 to 203 do not contemplate a regular trial of the truth of the allegations at that stage; the person complained against answers the accusation only after process has issued and he is on trial. The first part of Section 203 identifies the materials the Magistrate must weigh — the statements on oath and the result of any inquiry — and the second part authorises dismissal where, in his judgment, no sufficient ground for proceeding exists. The draftsman who understands that the complaint will be read against this filter will plead the ingredients of the offence with the completeness the filter demands.

Examination of the Complainant on Oath

The examination-on-oath requirement is the structural feature that most sharply distinguishes a criminal complaint from a civil plaint. In a plaint, verification is a paper formality executed by the plaintiff; in a complaint, the complainant must appear before the Magistrate and depose on oath, and that deposition becomes part of the record. The drafting consequence is that the written complaint and the sworn statement must cohere: a complaint that pleads facts the complainant cannot or will not affirm on oath collapses at the threshold. The advocate therefore drafts the complaint as a script the client can truthfully swear to, witness by witness.

Two statutory exceptions to examination-on-oath must be kept in view. The Magistrate need not examine the complainant and witnesses where the complaint is made in writing by a public servant acting in the discharge of his official duties or by a Court, or where the Magistrate makes over the case to another Magistrate for inquiry or trial under Section 192 CrPC (Section 212 BNSS). These proviso-driven exceptions explain why a complaint by, say, a Food Safety Officer is treated differently from a private citizen's complaint. For everyone else, the oath is mandatory, and the substance of the examination must be reduced to writing and signed — an omission that can vitiate the proceeding. The verification discipline here echoes, but is far stricter than, the affidavit-verification regime discussed in our note on the drafting of a plaint.

Cognizance and the Magistrate's Application of Mind

The complaint is drafted to persuade a Magistrate to "take cognizance," a term of art the draftsman must understand. Cognizance is not the issue of process; it is the application of judicial mind to the averments in the complaint for the purpose of proceeding under the Code. In Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, the Supreme Court held that under Section 190 it is the application of judicial mind to the averments that constitutes cognizance, and at that stage the Magistrate asks only whether there is sufficient ground for proceeding, not for conviction. The Court distinguished cognizance — judicial awareness of an offence — from summoning, the process of compelling the accused to appear.

The drafting implication is decisive: every essential ingredient of every offence charged must appear on the face of the complaint and the sworn statements, because the Magistrate's cognizance attaches to those averments alone. In Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420, the Court held that although no formal or reasoned order is required at the Section 190/204 stage, there must be sufficient indication of application of mind to the facts constituting the offence and to the statements recorded under Section 200. A complaint that merely recites statutory labels without pleading the constitutive facts gives the Magistrate nothing to apply his mind to, and an order issuing process on such a complaint is liable to be quashed.

Summoning Is Not Mechanical: The Pepsi Foods Caution

The most frequently invoked authority on the consequences of a deficient complaint is Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749. There, a Magistrate summoned the manufacturers of "Lehar Pepsi" on a complaint of adulteration after recording preliminary evidence, without indicating that he had applied his mind to whether a prima facie case was made out against each accused. The Supreme Court held that summoning an accused in a criminal case is a serious matter, that criminal law cannot be set in motion as a matter of course, and that the order summoning the accused must reflect that the Magistrate has applied his mind to the facts and the law applicable. The Court added that the Magistrate may himself put questions to the complainant and witnesses to test the truthfulness of the allegations before deciding whether an offence is prima facie made out.

For the draftsman, Pepsi Foods is a checklist in disguise. Because the summoning order must show application of mind to each accused, the complaint must plead, separately and specifically, the role of every person sought to be summoned — vicarious or designation-based liability cannot be assumed. A complaint that lumps directors and officers together without attributing specific acts invites the very quashing the Supreme Court sanctioned in Pepsi Foods. Specificity of attribution is therefore not advocacy flourish but survival drafting.

Section 200 Complaint Versus a Section 156(3) Application

The single most common drafting error is conflating a complaint under Section 200 with an application under Section 156(3) seeking police investigation. The Supreme Court drew the line authoritatively in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252, holding that the power to order police investigation under Section 156(3) operates at the pre-cognizance stage, whereas the power to direct investigation under Section 202(1) is a post-cognizance power exercised when the Magistrate is already in seisin of the case. A Magistrate who directs investigation under Section 156(3) has not taken cognizance at all; he has merely set the investigative machinery in motion.

The drafting choice flows from the relief sought. Where the complainant wants the police to investigate and register an FIR, the vehicle is a Section 156(3) application, and — following Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 — it must be supported by a duly sworn affidavit of the applicant. The Court there held this affidavit requirement to be mandatory, observing that the affidavit ensures the applicant takes responsibility for the assertions and deters the frivolous and vexatious invocation of the Magistrate's jurisdiction, particularly in matrimonial and commercial disputes. Where, instead, the complainant is content to lead his own evidence on oath and have the Magistrate decide on issuing process, the vehicle is a Section 200 complaint. Drafting the wrong instrument is fatal: a complaint cannot be treated as a Section 156(3) application merely because the complainant later wishes it had been.

Anticipating the Section 202 Inquiry

After examination on oath, the Magistrate may postpone process and hold an inquiry under Section 202 (Section 225 BNSS). The purpose of this inquiry, as the Supreme Court held in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, is to ascertain the truth or falsehood of the complaint — that is, whether there is evidence in support of the complaint sufficient to justify the issue of process — and not to try the accused. In that case the Presidency Magistrate, after referring the private complaint for inquiry and considering the material including a plea of private defence, dismissed the complaint under Section 203 for want of sufficient ground, and the Supreme Court upheld the approach.

The inquiry is no longer optional where the accused resides outside the Magistrate's jurisdiction. The proviso to Section 202(1), inserted by the 2005 amendment, makes it obligatory for the Magistrate to inquire into the case himself or direct investigation before summoning an accused residing beyond his territorial jurisdiction. In National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC 488, the Supreme Court held this requirement mandatory, explaining that its object is to protect innocent persons residing at a distance from being dragged to a far-off court by unscrupulous complainants. The draftsman acting for a complainant with out-of-jurisdiction accused must therefore plead the territorial facts squarely and be ready to lead inquiry evidence, because skipping the Section 202 inquiry renders any summoning order vulnerable.

Pleading Documents, Witness Lists and the Birla Standard

A complaint is only as strong as the material that accompanies it. Section 200 contemplates examination of "the witnesses present," and the proviso to Section 202(2) requires the Magistrate, in cases triable exclusively by the Court of Session, to call upon the complainant to produce all his witnesses and examine them on oath. The drafting discipline this imposes is twofold: the complaint must annex the documents relied upon and must name the witnesses who will depose, so that the Magistrate's inquiry is informed by the complainant's full case rather than a skeleton.

The standard of scrutiny the Magistrate brings to that material was clarified in Birla Corporation Ltd. v. Adventz Investments and Holdings Ltd., (2019) 16 SCC 610. The Supreme Court held that at the inquiry stage the Magistrate must scrutinise the complaint, the statements on oath and the documents, and form an opinion on whether there is sufficient ground for proceeding; on the facts, the filing of the complainant's confidential documents by the accused in earlier legal proceedings did not disclose the dishonest intention that theft requires, and the summoning order was set aside. The lesson for the draftsman is that documents must not merely be listed but must, on their face, support every ingredient pleaded — a document that is consistent with innocence cannot be made to carry a charge by assertion alone.

The Structure of the Draft Complaint

A well-drafted criminal complaint follows a recognised skeleton, though no statutory form is prescribed. It opens with the cause-title naming the court and the parties, identifying the complainant with full particulars and address and, where known, the accused with the same precision. A jurisdiction paragraph then pleads the territorial and pecuniary competence of the court and the place of occurrence. The body sets out the facts chronologically and in numbered paragraphs — date, place, the acts complained of, and the role attributed to each accused — culminating in a paragraph that maps those facts onto the specific sections of the penal statute alleged to be violated.

The complaint then pleads the absence of any bar (limitation under Section 468 CrPC / Section 514 BNSS, sanction where required, prior litigation) and lists the documents relied upon and the witnesses proposed to be examined. It closes with a prayer that the Magistrate take cognizance, examine the complainant and witnesses on oath, issue process and try the accused according to law. A verification and the complainant's signature follow, with a separate list of witnesses and an index of documents annexed. This architecture borrows the numbered-paragraph and material-facts discipline of civil pleading covered in our note on the drafting of a plaint, while adding the criminal-specific elements of oath, cognizance and process. For the broader drafting framework, see the Pleading & Drafting hub.

Section 223 BNSS: The Accused-Hearing Reform

The Bharatiya Nagarik Suraksha Sanhita, 2023, in force from 1 July 2024, re-enacts the Section 200 procedure as Section 223 but introduces a reform that rewrites the pre-cognizance landscape. The first proviso to Section 223(1) declares that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." Under the old CrPC, the proposed accused had no voice until process issued; the BNSS now inserts a mandatory hearing at the pre-cognizance stage. The main clause is otherwise faithful to its predecessor: the Magistrate examines the complainant and the witnesses present upon oath and reduces the substance to writing, signed by the complainant, the witnesses and the Magistrate.

This reform alters the draftsman's tactical horizon. The complaint must now be drafted in the knowledge that the proposed accused will see it, the sworn statements and the witness statements, and will be heard before cognizance. The complaint can no longer rely on surprise; it must be robust enough to withstand the accused's contemporaneous objections. A second proviso preserves the public-servant exception, dispensing with the hearing and examination where the complaint is made by a public servant acting in the discharge of official duties. The architecture of cognizance, inquiry, dismissal and process otherwise survives in Sections 225 to 227 BNSS.

Early Judicial Construction of the Section 223 Proviso

Because Section 223 is new, its construction is being worked out by the High Courts, and the draftsman must track the emerging sequence. In Basanagouda R. Patil (Yatnal) v. Shivananda S. Patil, decided by the Karnataka High Court on 27 September 2024, the Court held that the opportunity of being heard cannot be an empty formality: notice to the proposed accused must append the complaint, the sworn statement of the complainant and the statements of the witnesses, and the hearing must precede cognizance. The Court read the proviso as engaging only after the complainant and witnesses are examined on oath, not before.

The sequence has been refined by other High Courts. In Suby Antony v. Judicial First Class Magistrate (Kerala High Court, 2025), the Court held that notice cannot be issued to a prospective accused before the sworn statements are recorded, lest the safeguard be triggered prematurely; the hearing comes after examination on oath but before cognizance. Allahabad and other High Courts have similarly insisted on respecting the statutory order — examination on oath first, then the accused's hearing, then the cognizance decision. For the draftsman, the practical takeaway is that the complaint and the sworn statements form a single package that the accused will scrutinise, so internal consistency between the written complaint and the anticipated oral deposition is now not merely good practice but a litigation necessity.

Common Drafting Defects and How to Avoid Them

Certain defects recur in complaints and account for a large share of quashed summoning orders. The first is omission of ingredients: pleading "cheating" or "criminal breach of trust" without the constitutive facts of dishonest inducement or entrustment, a defect S.W. Palanitkar and Birla Corporation both punish. The second is omnibus arraignment: naming every director or family member without attributing a specific act to each, contrary to the Pepsi Foods requirement that the summoning order reflect application of mind to each accused. The third is mistaking the vehicle — filing a Section 200 complaint when the relief sought is police investigation, which should travel as an affidavit-backed Section 156(3) application under Priyanka Srivastava.

The fourth defect is procedural: ignoring the mandatory Section 202 inquiry for out-of-jurisdiction accused, which National Bank of Oman makes non-negotiable. The fifth, peculiar to BNSS practice, is drafting as though the accused will never see the complaint before cognizance — a fatal assumption now that Section 223 guarantees a pre-cognizance hearing. The remedy in each case is the same disciplined habit that governs all good pleading: plead material facts fully, attribute roles specifically, choose the right instrument, and respect the statutory sequence. The argumentative skill needed to defend such a complaint at the hearing stage overlaps with the advocacy discussed in our note on drafting of interlocutory applications.

Limitation, Sanction and Other Threshold Pleas

A complaint must affirmatively clear the threshold bars, because the Magistrate will not take cognizance of a barred offence. Limitation is governed by Section 468 CrPC (re-enacted as Section 514 BNSS), which bars cognizance of minor offences after the prescribed period — six months for offences punishable with fine only, one year for those punishable with imprisonment up to one year, and three years for those punishable with imprisonment up to three years. Where the complaint is filed beyond limitation, the draft must plead and justify condonation under Section 473 CrPC / Section 519 BNSS, setting out the grounds for delay, since the burden lies on the complainant to invoke that discretion.

Equally, where the offence concerns a public servant acting in discharge of official duty, the complaint must address the sanction requirement under Section 197 CrPC / Section 218 BNSS, either pleading that sanction has been obtained or explaining why it is not required. Special statutes carry their own pre-conditions — a notice of demand under the proviso to Section 138 of the Negotiable Instruments Act, 1881, for a cheque-bounce complaint, for instance — and the complaint that omits to plead compliance with such a condition precedent is liable to be dismissed at the threshold. These threshold pleas are the criminal analogue of the maintainability defences canvassed in our note on the drafting of a written statement, and a careful draftsman pre-empts them within the complaint itself.