Opportunity of Hearing to the Proposed Accused at Pre-Cognizance Stage in Complaint Cases: Implications of Proviso to Section 223(1) of the BNSS

Overview

The Nagarik Suraksha Sanhita, 2023¹ (for short, “BNSS”) a transformative piece of legislation, has redefined criminal jurisprudence by incorporating a proviso to Section 223(1)². This provision stipulates that in cases originating from private complaints, the Magistrate must serve a notice to the accused, affording them an opportunity to be heard prior to the court taking cognizance of the offence. This pioneering reform has unlocked a cascade of legal intricacies and procedural dilemmas, compelling legal scholars and practitioners to engage in rigorous analysis and debate.

Transition from CrPC to the BNSS: A paradigm shift

Under the erstwhile Section 200³ of the Criminal Procedure Code, 1973⁴ (for short, “CrPC”) traditional practice dictated that in private complaint cases, the accused remained uninvolved until the Court issued a process — either a summon or a warrant. At the pre-summoning evidence stage, the Magistrate would first examine the complainant and any witnesses. Only if a prima facie case was established and sufficient grounds were found would the Court proceed to issue a process to the accused. This procedure upheld a distinct separation between the complainant’s initial responsibility to present their case and the accused’s right to mount a defence. Essentially, this stage was a matter solely between the Court and the complainant, with the accused having no standing to appear or argue prior to being summoned.

While being summoned in a criminal case is undoubtedly a significant event, it does not inherently prejudice the accused, who is afforded ample opportunity to present their defence following the Court’s cognizance and potentially secure an exoneration. Multiple avenues exist for this purpose. For example, the accused may contest the summoning order through a revision petition. Alternatively, they may seek to have the case quashed by approaching the High Court under Section 482⁵ CrPC. Additionally, the accused can opt to argue for a discharge before the same Court, particularly if the matter lacks the merit to proceed to trial.

Section 223 of the BNSS, which has now replaced the former Section 200 CrPC and is fully operational, introduces a notable — and potentially contentious — proviso. It states:

223. Examination of complainant.—(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:

It is now evident that under the BNSS, a Magistrate cannot take cognizance of an offence based on a “complaint” without first providing the accused an opportunity to be heard. The provision mandates the issuance of a notice to the accused — more precisely, the proposed accused — before cognizance is taken, meaning prior to the Magistrate applying their judicial mind. This requirement of granting the accused a chance to present their side even before cognizance marks a significant departure from traditional criminal procedure, where such a step was previously unheard of. The apparent purpose behind this change is to afford the accused an additional layer of protection, potentially minimising false implications and enabling them to avoid being summoned in baseless criminal cases.

Understanding “cognizance”: A legal conundrum

Now, the most significant question that needs to be addressed is that what does the word cognizance connote and also at what stage or point of time it could be said that cognizance has been taken by court. Cognizance is a concept which resists being confined to rigid definitions or precise terminology. This differs significantly from a layperson’s understanding. Broadly, it involves a court recognising a crime alleged by a complainant and deciding whether the facts justify further action.

Although “cognizance” and “taking cognizance” are not explicitly defined in procedural law, their meanings have been clarified through numerous legal precedents and judicial interpretations. In common language, “cognizance” means “taking note of”, “being aware of”, or “gaining knowledge about” something. In a legal context, however, it specifically refers to a court or Magistrate with jurisdiction taking judicial notice of a case or matter to determine if there is sufficient basis to proceed judicially.

“Taking cognizance” of a case involving an alleged offence differs from a “cognizable case”. A police officer can file a first information report (FIR) only for a cognizable offence and cannot investigate a non-cognizable offence without court’s permission. Though the terms sound similar, they carry distinct meanings and contexts. While “cognizance” is not defined in the BNSS or CrPC, “cognizable offence” is defined in Section 2(c)⁶ CrPC [now 2(g) of the BNSS] as an offence or case where a police officer may arrest without a warrant, as per the First Schedule⁷ or applicable law. Conversely, Section 2(l) CrPC [now 2(o) of the BNSS] defines a “non-cognizable offence” as one where a police officer lacks authority to arrest without a warrant. Thus, it is essential to understand the new Code’s application regarding “taking cognizance” and the distinction between “cognizable” and “non-cognizable” offences.

In Narayandas Bhagwandas Madhavdas v. State of W.B.⁸ it is observed, as to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. It is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI⁹ CrPC or under Section 204¹⁰ of Chapter XVII¹¹ CrPC that it can be positively stated that he has applied his mind and therefore has taken cognizance.

In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy¹² it is observed that, what is meant by “taking cognizance of an offence” by the Magistrate within the contemplation of Section 190¹³? Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV¹⁴ CrPC, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3)¹⁵, he cannot be said to have taken cognizance of any offence.

Judicial interpretations: Resolving ambiguities

Now getting back to the discussion regarding the mandatory requirement of notice to be served upon the proposed accused according to proviso to Section 223(1) of the BNSS, there are serious doubts as to whether this notice to the proposed accused is to be issued after pre-summoning evidence or before. Is it to be issued the moment the complaint is received and registered, or after some basic inquiry into its merit? Also, is not calling the accused and then hearing the accused on why he/she should not be called/summoned is a little counter-intuitive. Thus, the manner, mode and timing of this notice is not clear in the statutory language.

However, very recently, the Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil¹⁶ throws light on the issue and clears some doubts by observing, the proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it: the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of the BNSS.

Concurring with the view of the Karnataka High Court in Basanagouda R. Patil case¹⁷, the Single Bench of Kerala High Court in Suby Antony v. Judicial First-Class Magistrate III¹⁸ observed:

7. … Being guided by the precedents on Sections 200 and 202 CrPC and the plain language of the proviso to Section 223(1) of the BNSS, this Court is of the opinion that, after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence/s, opportunity of hearing should be afforded to the accused.

The Allahabad High Court has also provided significant clarification regarding Section 223 of the BNSS. In a notable ruling by the Lucknow Bench of the Allahabad High Court on 13-2-2025 in Prateek Agarwal v. State of U.P.¹⁹, emphasised the procedural safeguards under Section 223 of the BNSS. The Court held that a notice to the proposed accused in a complaint case should only be issued after the complainant and witnesses have provided their statements on oath. In this case, the Chief Judicial Magistrate (CJM) in Sitapur had issued a summoning order on 15-10-2024, to the accused, Prateek Agarwal, before recording these statements. The High Court quashed this order, deeming it a violation of the mandatory procedure outlined in Section 223 of the BNSS. The Court underscored that issuing a notice prematurely undermines the legal process and the rights of the accused to be heard only after initial evidence is recorded. The Allahabad High Court’s interpretation reinforces that Magistrates must strictly adhere to the sequence of steps: first, record the statements of the complainant and witnesses; and only then issue a notice to the accused if cognizance is to be taken. The aforementioned judicial interpretations present a consistent and cohesive perspective on this critical issue, effectively resolving much of the surrounding confusion. These rulings also shed light on the stage of cognizance in complaint cases. As per these decisions, the cognizance of complaint cases occurs at a point after the statements of the complaint and witnesses are recorded, but before the issuance of process under Section 227²⁰ of the BNSS.

An alternative perspective: Timing and linguistic nuance

In the context of academic discourse, an additional perspective (the author’s own view) emerges regarding the proviso under discussion. Notably, the phrase “while taking cognizance” in Section 223(1) of the BNSS replaces the simpler “taking cognizance” found in the repealed Section 200 CrPC. Under the former Section 200 CrPC, the provision begins: “A Magistrate having jurisdiction taking cognizance of an offence on complaint”, whereas Section 223 of the BNSS starts with: “A Magistrate having jurisdiction while taking cognizance of an offence on complaint”. This subtle yet significant and deliberate shift in wording appears to be driven by the inclusion of the proviso in Section 223 of the BNSS.

Previously, once a complaint was filed and registered, a Magistrate proceeding to record the statements of the complainant and witnesses was deemed to have applied judicial mind and taken cognizance of the offence. However, the addition of “while” before “taking cognizance” suggests that the Magistrate is now in the process of taking cognizance — implying that cognizance has not yet been fully taken. This introduces an intermediate stage between the filing and registration of the complaint and the recording of statements. It is at this stage that issuing a notice to the proposed accused seems most appropriate. In this regard, Section 223(1) of the BNSS should be read alongside Section 226²¹ of the BNSS for a comprehensive understanding. Section 226 of the BNSS is being reproduced below for easy reference:

226. Dismissal of complaint.—If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225²², the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

Chapter XVII commencement of proceedings before Magistrates.

It is a well-established principle of criminal jurisprudence, as well as a constitutional fundamental right, that a proposed accused is not supposed to produce incriminating material before the Court when given an opportunity for a hearing. Furthermore, such material provided by the accused at this stage cannot serve as the basis for summoning them. Instead, the accused’s role is to counter the complainant’s claims by presenting any defensive material. Similarly, under Section 226 of the BNSS — previously outlined in Section 203²³ CrPC — a complaint may be dismissed after considering the statements on oath of the complainant and of the witnesses along with the findings of any inquiry or investigation conducted under Section 225, if applicable. Notably, Section 226 does not stipulate that a complaints’s dismissal should hinge on material submitted by the accused in their prior to the Court taking cognizance. If the proposed accused is afforded an opportunity of hearing before the Magistrate proceeds to record the statement of complainant and witness under Sections 223(1) and 225 of the BNSS, the proposed accused’s version, along with any supporting material, would be available before the Magistrate. This would enable the Magistrate to consider the accused’s perspective while recording the complainant’s and witnesses’ statements. If proposed accused is served with notice after pre-summoning evidence is presented, they would lose that opportunity. Section 226 of the BNSS explicitly does not allow the dismissal of a complaint based on the accused’s version, reinforcing that the accused’s input at this stage is not a factor in that decision. The right to a hearing for the proposed accused must not be reduced to a mere formality. Granting this right allows the Magistrate to make a more informed and equitable decision regarding whether to summon the accused. However, this stage does not permit a mini-trial, such as contradicting witnesses through cross-examination. It is equally important to distinguish between the opportunity for a hearing and summoning for trial. The former is the accused’s right to defend themselves before a summoning order is issued, without being compelled to appear or engage in pre-summoning proceedings. Summoning, on the other hand, is a more direct and authoritative legal order. It is a formal document (often called a “summons”) issued by a court or legal authority that compels a person to appear in court or respond to a legal action, such as a lawsuit or criminal charge.

Application to the Negotiable Instruments Act, 1881 cases

The question of whether notice must be served to the proposed accused prior to taking cognizance in cases under the Negotiable Instruments Act, 1881²⁴ (in short, “NI Act”) as mandated by the proviso to Section 223 of the BNSS, has sparked considerable debate 5 within the legal fraternity. In my view, the answer is affirmative, particularly in the absence of definitive judicial or legislative clarification on this matter as of now.

It is sometimes contended that since a notice is already served on the proposed accused — typically the drawer of the cheque — before the initiation of proceedings, as required under Section 138²⁵ of the NI Act, there is no need to issue an additional notice under the proviso to Section 223 of the BNSS prior to taking cognizance. However, I believe this argument overlooks the distinct purposes served by these two notices.

The notice under Section 138 of the NI Act is a fundamental legal requirement for constituting an offence. It must be served within 30 days of receiving information from the bank about the cheque being dishonoured, granting the drawer a 15-day window to make payment. The cause of action arises in favour of the payee only after this 15-day period lapses without payment, providing the drawer an opportunity to avoid criminal liability before a complaint is filed. In contrast, the proviso to Section 223 of the BNSS becomes relevant when a complaint is lodged under Chapter XVI of the BNSS. It establishes an essential statutory right for the accused, enabling them to present a defence at the pre-summoning stage.

This position finds support in judicial pronouncements from the Karnataka and Allahabad High Courts as well, which have clarified that notice under the proviso to Section 223 of the BNSS must be served after recording the complainant’s and witnesses’ statements. These rulings affirm that the requirement of notice prior to taking cognizance applies unequivocally to the NI Act cases as well. Consequently, it is now evident that serving notice to the proposed accused is a mandatory step under the proviso to Section 223 of the BNSS in such matters.

Challenges and constitutional scrutiny

Mannargudi Bar Assn. v. Union of India²⁶

Mannargudi Bar Assn. case²⁷ has challenged Section 223 in the Supreme Court through writ petition which is sub judice. The points on which it is challenged are as follows:

(a) Cognizance is to be taken of the offence, not the offender. What the Magistrate needs to see is the accusation, not the accused.

(b) In a complaint case, there may not always be an identifiable accused. Notice and/or opportunity of hearing cannot be granted in such cases.

(c) Section 223(1) is redundant, insofar as under Sections 225 and 226 there is no identifiable accused after investigation, complaint must be dismissed.

Apart from the above, some practical problems are tend to arise in the application of the proviso which are awaiting the constitutional courts’ address. These are enlisted as below:

(a) What would be the extent of the accused’s involvement at this stage? For instance, whether an accused can produce evidence at this stage or question complainant’s evidence/documents?

(b) Whether the accused will be made aware of all the material against him in order to provide him a reasonable and adequate opportunity to be heard?

(c) Is there an application of mind envisaged before issuance of notice to the accused or is the order to be passed mechanically the moment a criminal complaint comes before the court?

(d) What will be the administrative burden of this addition? Will this delay the initiation of criminal proceedings and taking them to their logical end?

(e) In case the accused chooses not to show up, will his/her right be waived off?

(f) Will this lead to a mini-trial (or a trial before trial) at this stage which was previously only a broad satisfaction about the existence of a prima facie case.

(g) On one hand timelines are introduced in order to ensure speedy justice, on the other, this proviso may delay the proceedings. Would this turn out to be counterproductive?

(h) Can the court refuse to take cognizance and dismiss the complaint if it concludes that the story put forth by the accused is true?

Judicial interpretations, such as the Karnataka, Kerala and Allahabad High Court’s ruling, will significantly influence how this provision unfolds in practice. Continued dialogue and possibly legislative refinement may be required to address uncertainties, ensuring the provision upholds justice without unduly straining any party involved. Striking a careful balance between swift justice delivery and safeguarding individual rights remains a fundamental pillar of our legal framework — a harmony that demands diligent preservation amid these procedural innovations.

Conclusion

In the light of decisions of Karnataka²⁸, Kerala²⁹ and Allahabad High Court³⁰, the legal proposition on the point under discussion, so far as the practical application of the proviso is concerned, is now very much clear up to some extent. In accordance with the principle of precedent, all courts in India, particularly those in Uttar Pradesh, must unequivocally recognise and adhere to the current legal stance: notice to the proposed accused must be issued only after the statements of the complainant and witnesses have been recorded under Section 223 of the BNSS, and following any inquiry or investigation under Section 225 of the BNSS, if deemed necessary, and prior to the issuance of process under Section 227 of the BNSS.

Regarding cases under the NI Act, it has been further clarified, beyond any shadow of doubt, that the proviso to Section 223 of the BNSS shall apply to such cases. Consequently, notice to the proposed accused must be served after compliance with Section 223 of the BNSS, irrespective of the notice requirements under Section 138 of the NI Act.