2025 (1) TMI 1586 - HC - Indian Laws

Requirement of issuance of notice to the accused named in the complaint before taking cognisance of the offence - Section 223(1) of the BNSS - HELD THAT - Taking of cognisance of an offence occurs when the Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence alleged to have been committed by the accused. Once cognisance is taken then the Magistrate has to decide whether to issue process to the accused or not. Section 225 confers power on the Magistrate to postpone the issue of process to the accused even after taking cognisance of the offence. At that stage the Magistrate can either inquire into the case himself or direct investigation to be made by a police officer or such other person for the purpose of deciding whether there is sufficient ground for proceeding. The Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others 1976 (4) TMI 213 - SUPREME COURT dilating on the limited scope of inquiry under Section 202 Cr.P.C corresponding to Section 225 of BNSS - The decision leaves no room for doubt that under the Code the accused had no locus standi even at the stage where the Magistrate decides whether or not to issue process to the accused. Indeed a radical change in procedure is brought about by the proviso to Section 223(1) of BNSS. Pertinently in spite of the proviso to Section 223(1) making it mandatory to provide opportunity of hearing to the accused before taking cognisance Section 226 does not reckon the accused s objection at the stage of taking cognisance as a relevant factor for dismissing the complaint. Being guided by the precedents on Sections 200 and 202 of the Code 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 cognisance of the offence/s opportunity of hearing should be afforded to the accused. The court below is directed to examine the complainant and his witnesses if any upon oath - the impugned order is quashed - appeal allowed.

Summary

ISSUES:

Whether Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) mandates issuance of notice to the accused before taking cognizance of the offence.Interpretation of the procedural requirements under Section 223(1) BNSS regarding examination of the complainant and witnesses before taking cognizance.Whether the accused has locus standi or right to be heard at the stage prior to taking cognizance under BNSS.Effect of the proviso to Section 223(1) BNSS on the traditional procedure under Section 200 and 202 of the Code of Criminal Procedure (Cr.P.C.).

RULINGS / HOLDINGS:

Section 223(1) BNSS requires the Magistrate to first examine the complainant and witnesses on oath before taking cognizance of the offence.The proviso to Section 223(1) BNSS makes it mandatory to give the accused an opportunity of being heard by issuing notice only after the Magistrate has examined the complainant and witnesses and before taking cognizance.The accused cannot be issued notice before the Magistrate takes cognizance; issuance of notice prior to cognizance is contrary to the statutory mandate and is illegal.Unlike the corresponding provisions under Cr.P.C., the accused has a right to be heard at the stage of taking cognizance under BNSS, as per the proviso to Section 223(1).The procedural sequence mandated is: presentation of complaint → examination of complainant and witnesses on oath → issuance of notice to accused → hearing of accused → taking cognizance.

RATIONALE:

The court relied on the plain language of Section 223(1) BNSS, which explicitly includes a proviso requiring the accused to be given an opportunity of being heard before cognizance is taken.The term "cognizance" was interpreted following authoritative Supreme Court exposition as "to take notice of judicially" and as a condition precedent for initiating proceedings.Precedents under the Cr.P.C. (Sections 200 and 202) were analyzed, highlighting that under the Code the accused had no locus standi at the pre-cognizance stage; however, BNSS introduces a "radical change" by mandating notice and hearing before cognizance.The procedural drill endorsed by the High Court of Karnataka was adopted, emphasizing examination of complainant and witnesses on oath prior to issuance of notice and taking cognizance.The court noted that Section 226 BNSS does not permit dismissal of complaint based on accused's objection at the cognizance stage, reinforcing that hearing is a procedural safeguard but not a ground for dismissal at that point.This interpretation represents a doctrinal shift from the Cr.P.C. regime, introducing a pre-cognizance hearing right for the accused under BNSS.