Section 198B CrPC and Section 221 BNSS: Cognizance of Offence

Section 221 BNSS: Cognizance of offence

Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides that a court cannot take cognizance of an offence punishable under Section 67 BNS involving persons in a marital relationship unless a complaint is filed or made by the wife against the husband and the court is prima facie satisfied that the facts constituting the offence exist.

Meaning of cognizance: In criminal procedure, taking cognizance refers to the court applying its judicial mind to the alleged offence for the purpose of proceeding according to law. It does not mean that guilt has been established.

Meaning of prima facie satisfaction: The court must find an initial factual basis disclosing the alleged offence. This preliminary assessment is not a final determination of whether the accused is guilty.

Section 67 BNS: Sexual intercourse by husband upon his wife during separation

Section 67 of the Bharatiya Nyaya Sanhita, 2023 makes it an offence for a husband to have sexual intercourse with his wife, who is living separately, whether under a decree of separation or otherwise, without her consent.

The punishment is imprisonment of either description for not less than two years and up to seven years, together with a fine. For this section, sexual intercourse means the acts described in clauses (a) to (d) of Section 63 BNS.

Living separately does not necessarily require a formal judicial separation decree. The statutory wording expressly includes separation otherwise than under a decree.

Earlier Section 198B CrPC: Cognizance of offence

Section 198B of the Code of Criminal Procedure, 1973, inserted by the Criminal Law (Amendment) Act, 2013 (Act 13 of 2013), section 19, governed cognizance of offences punishable under Section 376B of the Indian Penal Code, 1860, where the persons were in a marital relationship.

It required a complaint filed or made by the wife against the husband and the court's prima facie satisfaction regarding the facts constituting the offence. The original provision therefore closely corresponds to Section 221 BNSS, with the substantive offence now referenced as Section 67 BNS.

Requirements before the court takes cognizance

1. Marital relationship: The allegation concerns a husband and wife in the circumstances contemplated by the substantive offence.
2. Living separately: The wife is living separately, with or without a decree of separation.
3. Absence of consent: The alleged sexual intercourse took place without the wife's consent.
4. Complaint by the wife: Section 221 BNSS expressly requires a complaint filed or made by the wife against the husband.
5. Prima facie judicial satisfaction: The court must be initially satisfied that the complaint discloses facts constituting the offence.

The First Schedule to BNSS classifies the offence under Section 67 BNS as cognizable only on the complaint of the victim, bailable and triable by the Court of Session. The special cognizance condition under Section 221 must also be observed.

Applicability after 1 July 2024

The CrPC, 1973 was repealed and replaced by the BNSS, 2023, subject to saving and transitional provisions, including Section 531 BNSS. Whether the earlier or current procedural law governs a particular matter depends on the dates, nature and stage of the proceedings and the applicable savings.

For conduct predating commencement of the new criminal laws, the applicable substantive penal law must be assessed with regard to constitutional protection against retrospective criminal punishment under Article 20(1) of the Constitution of India. The commencement of BNSS does not automatically convert every earlier IPC offence into a BNS offence.

Official legislation and references

• India Code: Bharatiya Nagarik Suraksha Sanhita, 2023 - Sections 221 and 531.
• National Crime Records Bureau: BNSS statutory provisions - Section 221.
• National Crime Records Bureau: BNS statutory provisions - Section 67.
• National Crime Records Bureau: BNSS First Schedule - classification of Section 67 BNS.
• Bureau of Police Research and Development: New criminal laws - official legislation downloads.