Recently, the Delhi High Court held that the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) introduces a substantive procedural safeguard mandating that no cognizance of an offence shall be taken without first giving the accused an opportunity to be heard. This ruling came in a matter where the Magistrate had taken cognizance and issued process without serving prior notice to the accused. The Court emphasized that this procedural right is not an empty formality and must be meaningfully complied with.
Brief Facts:
A private complaint was filed before the Magistrate alleging commission of an offence. Without giving any prior notice or opportunity of hearing to the accused, the Magistrate proceeded to take cognizance and issued summons. The accused challenged this action before the Sessions Court, which set aside the Magistrate’s order on the ground that it violated the new procedural safeguard introduced under Section 223 BNSS. The complainant then approached the High Court challenging the order of the Sessions Judge.
Contentions of the Petitioner:
The petitioner contended that the Magistrate was not bound to issue notice or grant any opportunity of hearing to the accused prior to taking cognizance. It was argued that the pre-cognizance stage is entirely between the complainant and the Court, and therefore, requiring the accused to be heard before cognizance would be contrary to settled criminal procedure jurisprudence.
Observations of the Court:
The Court began by noting that under the previous Code of Criminal Procedure, 1973, particularly Sections 200 and 202, no notice was required to be given to the accused before cognizance. However, the BNSS has introduced a material departure by adding a proviso to Section 223(1) which mandates a hearing of the accused at the pre-cognizance stage.
Quoting the language of Section 223 and Section 225 of BNSS, the Court explained that the recording of statements of the complainant and witnesses is meant to assist the Magistrate in determining whether a prima facie case is made out. It held, “The recording of the statement of the complainant/witnesses is only to satisfy that the allegations made in the complaint prima facie disclose a cognizable offence... This procedure is, in fact, for the protection of the accused from being summoned on frivolous complaints.”
Citing the Supreme Court’s rulings in Narayan Das Bhagwandas Madhavdas v. State of West Bengal and Manharibhai Kakadia v. Shaileshbhai Patel, the Court reiterated that cognizance implies application of judicial mind, and such application must be preceded by due process, including the accused’s right to be heard as now prescribed under BNSS.
The Court also referred to judgments of the Kerala, Karnataka, and Calcutta High Courts, which have uniformly interpreted Section 223 BNSS to require that before cognizance is taken, the accused be given a copy of the complaint and statements of witnesses and be allowed to submit his version.
In particular, the Court quoted, “The proviso indicates that an accused should have an opportunity of being heard, which would not be an empty formality. Therefore, complainant in terms of proviso to sub-section to Section 223 of BNSS shall append the copy of the complaint, the small statements of the complainant and the witnesses, if any, for the accused to appear and submit his case before the cognizance is taken.”
The High Court concluded that the Sessions Judge had correctly interpreted the law, and that the Magistrate's action of issuing process without following the procedure mandated under Section 223 BNSS was legally unsustainable.
The decision of the Court:
Dismissing the petition, the High Court upheld the order of the Additional Sessions Judge, holding that taking cognizance and issuing process without giving the accused an opportunity of hearing was contrary to the new procedural safeguard under Section 223(1) BNSS. The Court observed that the legislative intent is clear in shifting towards a more protective mechanism for the accused even at the pre-cognizance stage, and such safeguard cannot be diluted. All pending applications were also disposed of accordingly.
Case Title: Brand protectors India pvt. Ltd. vs. Anil Kumar
Case No.: CRL.M.C. 1495/2025
Coram: Justice Neena Bansal Krishna
Advocate for Petitioner: Adv. Shubham Dayma
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