Section 212 of BNSS, 2023 — Making Over of Cases to Magistrates

Introduction

Section 212 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) deals with the making over of criminal cases to Magistrates for inquiry or trial after cognizance of the offence has been taken.

The provision enables the Chief Judicial Magistrate to assign a case to a competent subordinate Magistrate. It also permits an appropriately empowered Magistrate of the first class to make over a case to another competent Magistrate in accordance with the directions of the Chief Judicial Magistrate.

The provision facilitates the orderly distribution of criminal cases among competent Magistrates.

Meaning of Making Over of Cases

“Making over” of a case means assigning or transferring a case, after cognizance has been taken, to another competent Magistrate for inquiry or trial in accordance with the authority granted under Section 212.

It is a procedural mechanism for allocating cases among Magistrates. It does not determine the guilt or innocence of the accused and does not itself alter the merits of the case.

Statutory Basis

Section 212 contains two separate mechanisms for making over cases.

Section 212(1)

A Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to the Chief Judicial Magistrate.

Section 212(2)

A Magistrate of the first class who has been empowered by the Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to another competent Magistrate as specified by the Chief Judicial Magistrate through a general or special order.

Once the case is made over, the Magistrate to whom it is assigned may conduct the inquiry or trial.

Object and Purpose

The principal purpose of Section 212 is to provide an organised mechanism for distributing cases among competent Magistrates.

The provision:

• facilitates the efficient administration of criminal cases;
• permits cases to be assigned to Magistrates competent to inquire into or try them;
• allows the Chief Judicial Magistrate to regulate the allocation of cases;
• ensures that a case is dealt with by a Magistrate having the required legal competence.

Making over a case is therefore concerned with the allocation and conduct of proceedings rather than determination of the substantive merits of the case.

Essential Elements

1. Cognizance Must Have Been Taken

The power under Section 212 operates after cognizance of the offence has been taken.

The provision therefore follows the stage dealt with under Section 210 and other provisions relating to cognizance.

2. The Case Must Be Made Over for Inquiry or Trial

The case may be made over specifically for the purpose of inquiry or trial.

The Magistrate receiving the case must have the legal competence to conduct the relevant proceedings.

3. Chief Judicial Magistrate’s Power

Under Section 212(1), the Chief Judicial Magistrate may make over a case to any competent Magistrate subordinate to the Chief Judicial Magistrate.

4. Empowered First-Class Magistrate

Under Section 212(2), a Magistrate of the first class may make over a case only if empowered by the Chief Judicial Magistrate for this purpose.

5. Receiving Magistrate Must Be Competent

The case must be made over to a Magistrate who is competent to conduct the inquiry or trial.

6. Chief Judicial Magistrate’s General or Special Order

Under Section 212(2), the other Magistrate must be one specified by the Chief Judicial Magistrate through a general or special order.

Procedure Under Section 212(1)

The procedure under Section 212(1) can be understood as follows:

1. The Chief Judicial Magistrate takes cognizance of an offence.
2. The Chief Judicial Magistrate considers the appropriate Magistrate competent to conduct the inquiry or trial.
3. The case is made over to a competent Magistrate subordinate to the Chief Judicial Magistrate.
4. The Magistrate to whom the case is made over conducts the inquiry or trial in accordance with the BNSS.

Procedure Under Section 212(2)

Section 212(2) provides a separate mechanism.

1. A Magistrate of the first class takes cognizance of an offence.
2. The Magistrate must have been empowered by the Chief Judicial Magistrate to make over cases.
3. The case may be made over to another competent Magistrate.
4. The Magistrate receiving the case must be one specified by the Chief Judicial Magistrate through a general or special order.
5. The receiving Magistrate may thereafter conduct the inquiry or trial.

Powers of the Chief Judicial Magistrate

The Chief Judicial Magistrate has two important functions under Section 212.

First, under Section 212(1), the Chief Judicial Magistrate may directly make over a case to any competent subordinate Magistrate.

Second, under Section 212(2), the Chief Judicial Magistrate may empower a first-class Magistrate to make over cases and may specify, through a general or special order, the Magistrates to whom such cases may be made over.

The provision therefore places the Chief Judicial Magistrate at the centre of the distribution of cases among subordinate Magistrates.

Powers of an Empowered Magistrate of the First Class

A Magistrate of the first class does not automatically possess the power under Section 212(2).

The Magistrate must first be empowered by the Chief Judicial Magistrate.

After receiving such empowerment, the Magistrate may make over a case to another competent Magistrate in accordance with the general or special order of the Chief Judicial Magistrate.

Important Distinctions

Making Over vs Transfer on Application of Accused

Section 211 deals with a specific safeguard available to an accused where cognizance has been taken under Section 210(1)(c).

Section 212 deals with the administrative and procedural allocation of cases among competent Magistrates after cognizance has been taken.

The two provisions therefore operate in different circumstances.

Making Over vs Withdrawal of Cases

Making over a case means assigning it to another Magistrate for inquiry or trial under Section 212.

Withdrawal or recall of cases is separately dealt with under Section 450 of BNSS.

Therefore, making over and withdrawal are distinct procedural mechanisms.

Making Over vs Taking Cognizance

Taking cognizance involves the judicial consideration of an alleged offence by a competent Magistrate.

Making over concerns the Magistrate before whom the case will proceed for inquiry or trial.

Making Over vs Committal to Court of Session

Making over under Section 212 concerns proceedings before competent Magistrates.

Committal of a case to the Court of Session is a separate procedure governed by the relevant provisions of the BNSS.

BNSS and CrPC

Section 212 of BNSS substantially corresponds to Section 192 of the CrPC, 1973.

The basic framework remains substantially unchanged.

Under both provisions:

• the Chief Judicial Magistrate may make over a case after taking cognizance;
• the case may be assigned to a competent subordinate Magistrate;
• an appropriately empowered Magistrate of the first class may also make over cases;
• the receiving Magistrate must be competent to conduct the inquiry or trial;
• the Chief Judicial Magistrate controls the specification of Magistrates under the second mechanism.

Thus, Section 212 primarily continues the earlier CrPC framework with the corresponding provision renumbered under BNSS.

Relationship with Section 210

Section 210 deals with cognizance of offences by Magistrates.

Section 212 operates after cognizance has been taken and provides a mechanism for making over the case for inquiry or trial.

The two provisions are therefore connected but perform different functions:

• Section 210: deals with taking cognizance.
• Section 212: deals with making over the case after cognizance.

Relationship with Section 211

Section 211 provides a safeguard where cognizance is taken under Section 210(1)(c).

Section 212, on the other hand, concerns the making over of cases to competent Magistrates.

An accused’s statutory objection under Section 211 should not be confused with the ordinary case-allocation mechanism under Section 212.

Relationship with Section 450

Section 450 deals with withdrawal of cases by Judicial Magistrates.

Under Section 450, the Chief Judicial Magistrate may withdraw or recall a case that has been made over to a subordinate Magistrate, subject to the statutory conditions.

A Judicial Magistrate may also recall a case made over under Section 212(2) in accordance with Section 450.

Thus, Section 212 should be read alongside the later provisions concerning withdrawal and recall of cases.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) primarily defines criminal offences and prescribes punishments.

The BNSS establishes the procedural framework for investigation, cognizance, inquiry and trial.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 212 is a procedural provision dealing with the allocation of criminal cases among competent Magistrates. It does not define offences or determine the evidentiary rules applicable to the trial.

Important BNSS Provisions

• Section 210 — Cognizance of offences by Magistrate.
• Section 211 — Transfer on application of accused.
• Section 212 — Making over of cases to Magistrates.
• Section 213 — Cognizance of offences by Court of Session.
• Section 214 — Additional Sessions Judges to try cases made over to them.
• Section 223 — Examination of complainant.
• Section 450 — Withdrawal of cases by Judicial Magistrates.
• Section 452 — Reasons to be recorded.

Common Confusions

Can any Magistrate make over a case to another Magistrate?

No.

Section 212(2) specifically permits a Magistrate of the first class to make over a case only when empowered by the Chief Judicial Magistrate.

Can the Chief Judicial Magistrate make over a case?

Yes.

Under Section 212(1), the Chief Judicial Magistrate may make over a case after taking cognizance to any competent Magistrate subordinate to the Chief Judicial Magistrate.

Must the receiving Magistrate be competent?

Yes.

The case must be made over to a competent Magistrate who can legally conduct the inquiry or trial.

Does making over a case mean that the accused has been found guilty?

No.

Making over is a procedural allocation of the case. It does not determine guilt or innocence.

Is making over the same as transfer of a case at the request of the accused?

No.

Section 212 concerns making over of cases by the competent judicial authorities. Section 211 specifically concerns transfer on application of the accused in the circumstances mentioned in that provision.

Can a first-class Magistrate make over a case without authorisation?

No.

The Magistrate must be empowered by the Chief Judicial Magistrate under Section 212(2).

Example

Suppose a Chief Judicial Magistrate takes cognizance of an offence and determines that the matter should be inquired into or tried by another competent Magistrate subordinate to the Chief Judicial Magistrate.

Under Section 212(1), the Chief Judicial Magistrate may make over the case to that competent Magistrate.

Similarly, an empowered Magistrate of the first class may make over a case to another competent Magistrate if the receiving Magistrate has been specified by the Chief Judicial Magistrate through a general or special order.

Topic at a Glance

• Topic: Making over of cases to Magistrates
• BNSS Section: Section 212
• Main purpose: Allocation of cases for inquiry or trial
• Authority under Section 212(1): Chief Judicial Magistrate
• Receiving Magistrate: Any competent Magistrate subordinate to the Chief Judicial Magistrate
• Authority under Section 212(2): Empowered Magistrate of the first class
• Requirement under Section 212(2): Empowerment by Chief Judicial Magistrate
• Receiving Magistrate under Section 212(2): Competent Magistrate specified by general or special order of Chief Judicial Magistrate
• CrPC counterpart: Section 192 of the CrPC, 1973
• Related provision: Section 450 concerning withdrawal of cases by Judicial Magistrates

Quick Revision

• Section 212 BNSS deals with making over of cases to Magistrates.
• The case is made over after cognizance has been taken.
• A Chief Judicial Magistrate may make over a case to any competent subordinate Magistrate.
• A Magistrate of the first class may make over a case only if empowered by the Chief Judicial Magistrate.
• Under Section 212(2), the receiving Magistrate must be specified by the Chief Judicial Magistrate through a general or special order.
• The receiving Magistrate must be competent to conduct the inquiry or trial.
• Making over a case is different from taking cognizance.
• Making over is also different from transfer on application of the accused under Section 211.
• Withdrawal and recall of cases are dealt with separately under Section 450.
• Section 212 substantially corresponds to Section 192 CrPC.

ALSO READ: Section 211 – Transfer on application of accused

Conclusion

Section 212 of BNSS provides the procedural framework for assigning criminal cases to competent Magistrates after cognizance has been taken. It gives the Chief Judicial Magistrate a central role in distributing cases and permits appropriately empowered first-class Magistrates to make over cases in accordance with the directions of the Chief Judicial Magistrate. The provision ensures that cases are handled by competent Magistrates while maintaining an organised judicial structure for criminal inquiries and trials.