Introduction
Section 382 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the procedure to be followed by a Magistrate when taking cognizance of a complaint made under Section 379 or Section 380.
The provision applies to the special category of cases concerning offences affecting the administration of justice. It directs the Magistrate to deal with such a case, as far as may be, in the same manner as a case instituted on a police report.
Section 382 also addresses the situation where an appeal is pending against the decision in the judicial proceeding from which the complaint arose.
Meaning of Section 382
Section 382 establishes the procedural framework that applies after a complaint under Section 379 or Section 380 reaches the Magistrate.
Its two main features are:
- the Magistrate must deal with the case, as far as may be, as a case instituted on a police report; and
- where an appeal is pending against the decision in the original judicial proceeding, the Magistrate may adjourn the proceedings until that appeal is decided.
The provision therefore connects the special complaint mechanism relating to offences affecting the administration of justice with the ordinary procedure applicable to cases instituted on a police report.
Statutory Basis
The provisions closely connected with Section 382 are:
- Section 210, BNSS: Cognizance of offences by Magistrates.
- Section 215, BNSS: Prosecution for contempt of lawful authority of public servants, offences against public justice and offences relating to documents given in evidence.
- Section 379, BNSS: Procedure in cases mentioned in Section 215.
- Section 380, BNSS: Appeal.
- Section 381, BNSS: Power to order costs.
- Section 382, BNSS: Procedure of Magistrate taking cognizance.
Section 382 should not be confused with Section 210. Section 210 contains the general provisions governing cognizance by Magistrates, whereas Section 382 prescribes the procedure for this specific category of complaints.
Object and Purpose
The purpose of Section 382 is to provide an appropriate procedural mechanism for complaints arising out of judicial proceedings.
Complaints concerning offences affecting the administration of justice are subject to a special statutory framework. Section 379 provides the mechanism through which such a complaint is made, while Section 382 determines how the Magistrate is to deal with the resulting case.
The provision also recognises that the decision in the original judicial proceeding may itself be under challenge. It therefore permits the Magistrate to postpone the criminal proceedings where an appeal against that decision is pending.
Nature and Scope
Section 382 is a procedural provision.
It does not itself create a criminal offence. Instead, it regulates the manner in which the Magistrate proceeds with a complaint falling within the special statutory scheme.
Its scope is limited to complaints made under the provisions specifically referred to in Section 382. It is therefore not a general rule governing every complaint presented before a Magistrate.
Essential Elements
1. Complaint under Section 379 or Section 380
Section 382 applies when the Magistrate receives a complaint made under Section 379 or Section 380.
These provisions operate within the special framework concerning offences affecting the administration of justice.
The Magistrate therefore exercises the power under Section 382 only in the circumstances contemplated by these connected provisions.
2. Procedure Similar to a Case Instituted on a Police Report
The central requirement of Section 382 is that the Magistrate shall deal with the case as if it were instituted on a police report, as far as may be.
This does not mean that the complaint is converted into a police report.
Rather, the provision directs the Magistrate to follow the procedure applicable to a case instituted on a police report to the extent that such procedure can appropriately be applied.
The words “as far as may be” are significant because they recognise that the circumstances of a complaint arising from a judicial proceeding may not correspond in every respect to an ordinary police-report case.
3. Pending Appeal
Section 382 also deals with a situation where an appeal is pending against the decision in the judicial proceeding from which the complaint arose.
In such circumstances, the Magistrate may consider whether the criminal proceedings should be postponed.
4. Discretion to Adjourn
The Magistrate may, if considered appropriate, adjourn the hearing until the appeal has been decided.
The provision therefore gives the Magistrate a discretionary power.
The mere existence of an appeal does not automatically require the Magistrate to adjourn the proceedings.
Procedure
The operation of Section 382 can be understood in the following stages:
- An offence covered by Section 215 is alleged to have been committed in connection with a judicial proceeding.
- The statutory procedure under Section 379 or Section 380 is invoked.
- A complaint reaches the Magistrate.
- The Magistrate deals with the case, as far as may be, in accordance with the procedure applicable to a case instituted on a police report.
- If an appeal is pending against the decision in the judicial proceeding from which the complaint arose, the Magistrate considers whether an adjournment is appropriate.
- If the Magistrate thinks fit, the hearing may be adjourned until the appeal is decided.
Powers of the Magistrate
Section 382 gives the Magistrate an important procedural role.
The Magistrate must apply the procedure applicable to a case instituted on a police report to the extent that it is appropriate.
The Magistrate also has the discretion to adjourn the proceedings when an appeal against the underlying judicial decision is pending.
The power of adjournment is therefore discretionary and not mandatory.
Pending Appeal and Adjournment
The provision does not require every case to be postponed merely because an appeal is pending.
The Magistrate must consider the circumstances of the case and may adjourn the proceedings if the Magistrate thinks it appropriate to do so.
The relevant appeal is an appeal against the decision reached in the judicial proceeding out of which the matter has arisen.
This provision prevents the existence of a pending appeal from automatically determining the course of the criminal proceedings while still giving the Magistrate the flexibility to wait for the appellate decision where appropriate.
Important Distinctions
Section 382 and Section 210
Section 210 deals with the general power of a Magistrate to take cognizance of offences.
Section 382 deals with the procedure applicable to a specific category of complaints arising under Sections 379 and 380.
Thus, Section 382 should not be treated as a replacement for the general cognizance provision in Section 210.
Taking Cognizance and Issuing Process
Taking cognizance and issuing process are different procedural stages.
Taking cognizance involves the Magistrate applying judicial mind to the offence for the purpose of proceeding under the criminal procedure.
Issuing process is a subsequent procedural step by which the accused may be called before the Court.
Section 382 primarily regulates the procedural treatment of the special complaint after it reaches the Magistrate.
Complaint and Police Report
A complaint under Section 379 does not become a police report merely because Section 382 directs the Magistrate to deal with it as a case instituted on a police report.
The provision concerns the procedure to be followed, not the legal identity of the initiating document.
BNSS and CrPC
The corresponding provision under the Code of Criminal Procedure, 1973 was Section 343, CrPC, titled “Procedure of Magistrate taking cognizance.”
Section 343 CrPC operated in relation to complaints under Sections 340 and 341 of the CrPC.
Under the BNSS, the corresponding provisions are found in Sections 379 and 380, while Section 382 contains the procedural rule.
The core procedural principle has substantially continued. The Magistrate is still required to deal with the matter, as far as may be, as a case instituted on a police report, and the Magistrate retains discretion to adjourn the proceedings where an appeal against the underlying decision is pending.
The principal change is therefore the renumbering and restructuring of the corresponding provisions under the BNSS rather than a fundamental change in the basic procedural mechanism.
Case Law
State of Goa v. Jose Maria Albert Vales
The Supreme Court considered the corresponding provision under the CrPC and examined the meaning of the expression “as far as may be.”
The decision recognised that the provision requires the Magistrate to follow the procedure applicable to a case instituted on a police report to the extent appropriate. The expression provides flexibility because the special proceedings arising from a judicial proceeding may not fit mechanically into every aspect of the ordinary police-report procedure.
The decision was rendered under the CrPC. It is therefore relevant to Section 382 BNSS insofar as the corresponding statutory language and procedural scheme have been substantially retained.
Rohtash v. Registrar General
The Delhi High Court considered the corresponding CrPC provision and dealt with the procedural treatment of cases arising from complaints under the special provisions concerning offences affecting the administration of justice.
The decision emphasised the statutory direction to deal with such proceedings in accordance with the procedure applicable to a case instituted on a police report.
Since the decision concerns the CrPC, its relevance to BNSS Section 382 depends upon the continuing similarity between the corresponding provisions.
Example
Suppose a Court, during a judicial proceeding, forms the opinion that an offence relating to evidence or a document produced before the Court has been committed and that prosecution is appropriate in the interests of justice.
After following the statutory procedure, a complaint is made under Section 379.
The Magistrate receiving the complaint must deal with the case, as far as may be, using the procedure applicable to a case instituted on a police report.
Suppose an appeal is also pending against the decision in the original judicial proceeding. The Magistrate may, if considered appropriate, adjourn the hearing of the criminal case until that appeal is decided.
Common Confusions
Does Section 382 apply to every complaint before a Magistrate?
No.
It applies to the special complaints referred to in Sections 379 and 380.
The general framework for taking cognizance by a Magistrate is dealt with separately under Section 210.
Does a complaint under Section 379 become a police report?
No.
Section 382 only requires the Magistrate to deal with the case as if it were instituted on a police report, as far as may be.
The complaint does not literally become a police report.
Is adjournment mandatory when an appeal is pending?
No.
The Magistrate has discretion to adjourn the proceedings. The existence of a pending appeal does not automatically require an adjournment.
Is Section 382 itself a provision creating an offence?
No.
It is a procedural provision. The offences to which this special procedure relates are dealt with through the provisions connected with Section 215.
Important BNSS Provisions
Section 210
Deals with the general circumstances in which a Magistrate may take cognizance of an offence.
Section 215
Deals with prosecution concerning contempt of lawful authority, offences against public justice and offences relating to documents given in evidence.
Section 379
Provides the procedure for cases covered by Section 215, including the making of a complaint in the circumstances specified by law.
Section 380
Deals with the appeal mechanism connected with such proceedings.
Section 381
Deals with the power to order costs in proceedings connected with the application or appeal.
Section 382
Prescribes the procedure to be followed by the Magistrate taking cognizance of the complaint.
Topic at a Glance
- Topic: Procedure of Magistrate Taking Cognizance
- BNSS Section: Section 382
- Nature: Procedural provision
- Related provisions: Sections 210, 215, 379, 380 and 381
- Main rule: The Magistrate deals with the case, as far as may be, as a case instituted on a police report.
- Pending appeal: The Magistrate may adjourn the proceedings where an appeal against the underlying judicial decision is pending.
- Adjournment: Discretionary, not mandatory.
- CrPC counterpart: Section 343
- Key expression: “As far as may be”
- Scope: Special complaints connected with offences affecting the administration of justice.
Quick Revision
- Section 382 BNSS deals with the procedure of a Magistrate taking cognizance of specified complaints.
- It operates in connection with Sections 379 and 380.
- The provision relates to the special procedure concerning offences covered by Section 215.
- The Magistrate deals with the case as if instituted on a police report, as far as may be.
- The complaint itself does not become a police report.
- The words “as far as may be” provide procedural flexibility.
- If an appeal is pending against the decision in the underlying judicial proceeding, the Magistrate may adjourn the proceedings.
- Adjournment is discretionary.
- Section 382 corresponds substantially to Section 343 CrPC.
- Section 210 contains the general framework for cognizance by Magistrates.
- Section 382 should be read together with Sections 215, 379 and 380.
ALSO READ: Section 381 – Power to order costs
Conclusion
Section 382 BNSS provides the procedural bridge between the special complaint mechanism for offences affecting the administration of justice and the ordinary procedure applicable to cases instituted on police reports. Its use of the expression “as far as may be” allows the Magistrate to apply that procedure appropriately, while the provision concerning pending appeals gives the Magistrate discretion to postpone the criminal proceedings where circumstances justify doing so.
