A Comprehensive Analysis of Section 223, Nagarik Suraksha Sanhita, 2023

The Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “the new Code”) which received the assent of the President of India on 25-12-2023 and having come into force on 1-7-2024 is an Act that has not only repealed the erstwhile procedural Code (Criminal Procedure Code, 1973) but has also introduced and interposed a slew of radical statutory changes so as to address issues plaguing the dispensation of the criminal justice system of our country which included low conviction rates, underutilisation of technology and latest forensic techniques and other procedural delays.

Some of the statutory and procedural changes introduced by the new Code include utilisation of technology and forensic science in the investigation of a crime, registration of a first information report (FIR) through electronic means/mode, service of summons through electronic means, specific time-bound preliminary enquiries prior to the registration of an FIR, additional magisterial remedy under Section 173(4) to name a few.

One such significant departure from the procedure prescribed under Chapter XV of the repealed Criminal Procedure Code, 1973 is the introduction of a proviso to Section 223(1) that has completely changed the manner in which the Magistracy would be dealing with private complaints preferred before them whether under the new Penal Code (Nyaya Sanhita, 2023) or under special statutes like the Prevention of Money Laundering Act, 2002; Negotiable Instruments Act, 1881, etc.

Before proceeding further with an analysis and cogitation of the judicial postulations on this newly introduced procedural requirement, it would be germane to encapsulate the difference between the erstwhile Section 200, Criminal Procedure Code as well as Section 223 of the new Code:

Criminal Procedure Code, 1973

Nagarik Suraksha Sanhita, 2023 (BNSS)

Section 200   200. Examination of complainant.— A Magistrate 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 when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Section 223   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: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212: Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless— (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.

A bare perusal of the aforementioned sections would reveal that the legislature in its wisdom while following the maxim of “audi alteram partem” has introduced a statutory safeguard in the proviso under sub-section (1) of Section 223 of the new Code with a twofold objective:

(i) to provide the proposed accused in a private complaint an opportunity of being heard before cognizance and summoning; and

(ii) to discourage filing of private criminal complaints laden with subterfuges, concealments and misrepresentation of facts.

A slew of questions arose with regard to the applicability of the newly added proviso which the author will try to encapsulate in the following paragraphs by referring to various judicial postulations that have been rendered on this very subject.

Retrospective or prospective applicability

A significant question that arose upon the enforcement of the new Code was whether the newly added proviso to Section 223 would have retrospective or prospective applicability wherein the complaints have been filed prior to 1-7-2024, however the cognizance was taken after 1-7-2024.

The Supreme Court has recently issued notice on 13-8-2025 on this very issue in a case titled as Parvinder Singh v. Enforcement Directorate¹ which is pending adjudication for 7-10-2025.

However, the Punjab and Haryana High Court vide judgment pronounced on 29-7-2025 titled as Sikander Singh v. Enforcement Directorate² wherein the complaint was filed on 27-6-2024 has held as under:

“When an ex post facto law can be applied to give the benefit of reduced punishment to a person accused of committing an offence under the unamended statute by invoking the rule of beneficial construction, it can be made applicable to the instant case as well. It is accordingly held that the varied procedure of giving prior hearing to the accused before taking cognizance will apply to the prosecution complaint in question, which gives the petitioner right of hearing in terms of Section 223 BNSS.”

Applicability to special statutes

Before a cogitation of the aforementioned issue in light of the judicial postulations and pronouncements being referred to below it would be quintessential to refer to Section 5 of the new Code which reads as under:

5. Saving.— Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

The Supreme Court in a widely reported and recent postulation in Kushal Kumar Agarwal v. Enforcement Directorate³ has held the newly added proviso of Section 223(1) to be applicable to complaints under the Prevention of Money Laundering Act, 2002 (PMLA) with the following observations:

5. This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44(1)(b) PMLA will be governed by Sections 200 to 204 CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India⁴ and Tarsem Lal v. Enforcement Directorate⁵. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 PMLA. As the complaint has been filed after 1-7-2024, Section 223 BNSS will apply to the present complaint.

This has also been reiterated in a recent judgment of the Delhi High Court in Lakshay Vij v. Enforcement Directorate⁶ and the Calcutta High Court in Kirity Bhusan Mahata v. State of W.B.⁷.

The Jammu and Kashmir High Court in Mohd Afzal Beigh v. Noor Hussain⁸ has affirmed the applicability of Section 223 BNSS along with the newly added statutory safeguard to complaints under the Negotiable Instruments Act, 1881 (NI Act) with the following findings:

6. … Section 142 of the Act or any other provision of the Chapter (xvii) of the Act does not bar the satisfaction in terms of the requirements as mentioned under Section 223 BNSS corresponding to Section 200 of the Code viz examination upon oath of the complainant/payee/holder of the cheque and the witnesses present as also of the issuance of the pre-cognizance notice. Such requirements are mandatory in respect of the complaints filed before the criminal Courts for taking cognizance on penal offences especially covered under BNS (corresponding to repealed IPC). Since, the remedy for an offence under Section 138 of the Act is a complaint, as referred to under Section 142 of the Act, therefore, the observance of the requirements as mentioned under Section 223 BNSS regarding examination of the complainant/payee and the witnesses present on oath as also the issuance of the pre-cognizance notice introduced by the new legislation, is not at all barred but desired in respect of a complaint filed under Section 138 of the Act.

The Karnataka High Court in Ashok v. Fayaz Aahmad⁹ has rendered a divergent view with the following observations:

22. The coordinate Bench of this Court in Hanumesh v. Karanagi Brothers Enterprise¹⁰ has relied upon the decision in Basanagouda R. Patil (Yatnal) and held that before taking cognizance of offence under Section 138 NI Act, the Magistrate shall comply the requirement of Section 223 BNSS. In the said case, the Court has not considered that the Negotiable Instrument Act is special statute and procedure provided for offence punishable under Section 138 NI Act for trial is a summary procedure and Section 5 BNSS.

23. Since Negotiable Instrument Act, 1881 is special enactment and in view of Section 5 BNSS r/w Section 143 NI Act as far as the cases tried by the learned Magistrates under Section 138 NI Act, there is no need for the Magistrate to give an opportunity of being heard to the accused before taking cognizance on the complaint of payee/holder in due course of cheque for offence punishable under Section 138 NI Act.

Procedure to be adopted by magistracy

The Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil¹¹ after analysing the import of the newly added safeguard under Section 223 BNSS has laid down the following procedure to be followed by Magistrates dealing with private criminal complaints being filed under Chapter XVI of the new Code:

10. Therefore, the procedural drill would be this way:

A complaint is presented before the Magistrate under Section 223 BNSS; on presentation of the complaint, it would be the duty of the Magistrate/Court concerned to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The Magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

The same view has been reiterated by the Allahabad High Court in Rakesh Kumar Chaturvedi v. State of U.P.¹² wherein it was held:

11. Adverting to the facts of the present case, it is apparent that notices have been issued to the applicant without recording the statements of the complainant and witnesses, which is against the prescribed procedure under the BNSS, therefore, this Court is of the view that the impugned order is not sustainable in the eyes of law. It is also noticed that the notice issued to the applicant, contained as Annexure 1 is a blank notice without filling the blanks and mentioning the name of the applicant only, whereas notice should have been issued properly after filling all the relevant blanks and the Court concerned shall ensure that such notice is not issued in future.

The aforementioned views have further been fortified by the Kerala High Court in Suby Antony v. Susha¹³ wherein the High Court has clearly outlined the procedure to be followed for complaints filed under Chapter XVI of the new Code as under:

7. … Being guided by the precedents on Sections 200 and 202 Code and the plain language of the proviso to Section 223(1) 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.

However, it would be apposite to also mention a divergent view taken by the Calcutta High Court in Kaberi Dey v. Sourav Bhattacharjee¹⁴ wherein the Court has outlined a procedure wherein there is no requirement of the Magistracy to examine the complainant and other witnesses before issuing the statutory notice to the proposed accused as mandated by the proviso of Section 223 of the new Code. The relevant observations are as follows:

18. From a comparative study of the relevant provisions of the CrPC and the BNSS it would be evident that the provisions of pre cognizance hearing has been introduced by the legislature by insertion of the proviso to Section 223(1) BNSS. However, the other portions of the relevant provisions have been kept intact. Since the other provisions remains unaltered therefore, there can hardly any scope of departure from the interpretation as made by the Supreme Court in various judgments including the judgments quoted above in R.R. Chari case¹⁵, Tula Ram case¹⁶ and Manharibhai Muljibhai case¹⁷ as the cognizance is known to be the initial stage of taking judicial notice of the allegations in the complaint for proceeding further in terms of the other provisions of the CrPC. Therefore, there can be no occasion for a Magistrate to examine the complainant prior to taking cognizance.

An etymological and assiduous analysis of the aforementioned postulations would invariably establish that any variance from the procedure as laid down by the statutory mandate of the proviso of Section 223(1) of the new Code would at best be an irregularity under Section 506 the new Code (corresponding to Section 460, Criminal Procedure Code, 1973) which can be rectified by the High Court while exercising its inherent jurisdiction under Section 528 and remand back the case for compliance with the statutory mandate. The same has been done by the Punjab and Haryana High Court in Gulshan Rai v. Charanjit Singh¹⁸ wherein the impugned summoning order was set aside and the learned trial court was directed to pass a fresh order after affording an opportunity of hearing to the proposed accused.

An important issue that remains in ambiguity which would require judicial interpretation is whether the proposed accused appearing upon the notice issued under the proviso of Section 223(1) of the new Code would be able to rely on documents/averments/submissions outside of the complaint and the documents annexed therein in the reply filed by him/her/them and whether the proposed accused upon notice would be permitted to cross-examine the complainant and other witnesses who have deposed in pre-summoning evidence.

Submissions to this regard were made by learned Additional Solicitor General S.V. Raju during the hearing of the case of Kushal Kumar Aggarwal. Firstly, that the hearing given to the accused in terms of proviso to sub-section (1) of Section 223 will be confined to the question whether a case is made out to proceed on the basis of the complaint and hence, only the complaint and the documents produced along with the complaint can be considered at the time of hearing. His second submission was that it is well-settled that cognizance is taken by the criminal court of the offence and not the offender. Therefore, after taking cognizance after following the procedure prescribed by the proviso to sub-section (1) of Section 223, if cognizance is taken, there will be no occasion to again take cognizance of the same offence when supplementary or further complaints are filed.

In my humble opinion the intent of the legislature was to protect citizens from being mechanically summoned in private criminal complaints being filed on the strength of subterfuges and incongruity in the allegations therein, by providing the proposed accused an opportunity of being heard before issuance of process. The legislative intent would be defeated in case the proposed accused is restricted and limited to respond to the averments/allegations/documents of the complaint as the same could also suffer from concealments and misstatements just to mislead the learned Magistracy to issue process.