Delhi High Court: While hearing a quashing petition filed by petitioner against the order dated 17 January 2025 passed by the trial court in a defamation criminal complaint, Single Judge Bench of Dr Justice Swarana Kanta Sharma referred the matter to a larger Bench for consideration.
The issue raised by the petitioner involved the interpretation of Section 223, Nagarik Suraksha Sanhita, 2023 (BNSS), and in particular, the scope and effect of the newly introduced first proviso to Section 223(1) BNSS, which mandates that no cognizance of an offence on a complaint shall be taken by the Magistrate without affording the accused an opportunity of being heard.
The Court, in Rita Bakshi v. Seema Bajaj, had addressed a significant question concerning the stage at which “cognizance” is taken under the BNSS and expressly dissented from earlier decisions of coordinate Benches of the Court, including Brand Protectors India (P) Ltd. v. Anil Kumar, 2025 SCC OnLine Del 5046 and Neeti Sharma v. Saranjit Singh, 2025 SCC OnLine Del 2329. These judgments had held that the recording of statements of the complainant and witnesses is a step preceding the taking of cognizance, and that the opportunity of hearing under the proviso to Section 223(1) BNSS arises only thereafter.
However, the Court in Rita Bakshi had formed a prima facie opinion that cognizance is taken at the stage when the Magistrate applies judicial mind to proceed under Section 223 BNSS, and that the examination of the complainant is a subsequent step. While arriving at this conclusion, the Court had analysed several decisions of the Supreme Court on the concept of “taking cognizance”, which has consistently been interpreted as the application of judicial mind to the facts of a case for the purpose of proceeding in a particular manner.
In light of the apparent divergence from established precedent, the present issue had been raised.
The petitioner challenged the impugned order on multiple grounds. First, it was contended that taking cognizance in a complaint case is a judicial act involving the Magistrate’s application of mind to the alleged offence, whereas the examination of the complainant on oath (pre-summoning evidence) is merely a procedural step that follows cognizance. Second, it was argued that the trial court could not have proceeded to examine the complainant and witnesses without first taking cognizance, and that such action was undertaken without affording the petitioner an opportunity of hearing as required under the proviso to Section 223(1) BNSS.
Third, the petitioner submitted that although Section 223 BNSS introduced an important safeguard by mandating a pre-cognizance hearing for proposed accused persons in private complaints, this safeguard was rendered ineffective in the present case. The trial court, by directing the recording of pre-summoning evidence of the complainant and her witnesses, had effectively taken cognizance without first granting the petitioner an opportunity of hearing, thereby defeating the legislative intent behind the proviso.
While referring the matter to a larger Bench, the Court granted liberty to the petitioner to press the pending stay application before the larger Bench.
Also read: A Comprehensive Analysis of Section 223, Nagarik Suraksha Sanhita, 2023
[Pooja Chaudhri v. Priya S. Kapur, CRL.M.C. No. 2419 of 2026, decided on 1-4-2026]
Advocates who appeared in this case:
For the Petitioner: Arjun Syal, Akhilesh Wahal, Rohit Kumar, Naman Verma, Vanshika Bhati, Advocates.
For the Respondents: Maninder Singh, Senior Advocate, Smriti Asmita, Rahul Pandey, Janvi Narang, Amit Prasad, Anirudh Krishan Gandhi, Sanya Sud, Megha Khandelwal, Advocates
