Introduction
The Delhi High Court has clarified an important procedural question concerning taking of cognizance under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly in cases instituted through private complaints.
In CRL.M.Cs. 2551/2025 & 3169/2026, a Division Bench of the Delhi High Court examined the meaning and effect of Section 223(1) BNSS, which corresponds broadly to Section 200 of the Code of Criminal Procedure, 1973 (CrPC).
The Court held that there has been a significant change in the procedure under the BNSS. The Magistrate must first examine the complainant and witnesses present on oath, unless such examination is exempted by law. Thereafter, where the complaint is not liable to be dismissed, the accused must be given an opportunity of being heard before formal cognizance is taken.
The judgment therefore establishes an important procedural sequence for Magistrates dealing with private complaints under the BNSS.
What Is Cognizance Under the BNSS?
The expression “taking cognizance” refers to the stage when the Magistrate applies judicial mind to the alleged commission of an offence for the purpose of proceeding under criminal law.
The judgment distinguishes the stage of taking cognizance from the later stage of issuing process against the accused.
Under the BNSS, Section 210 corresponds to Section 190 CrPC. However, the Delhi High Court emphasized that merely because Section 210 BNSS has retained the earlier provision does not mean that the procedure concerning private complaints remains unchanged.
The significant changes have been introduced through Section 223 BNSS.
Section 223 BNSS Introduces a Significant Change
Section 223 BNSS corresponds to Section 200 CrPC but contains two important changes.
The first change is the insertion of the words “having jurisdiction while”.
The second and more significant change is the first proviso to Section 223(1), which provides that:
“no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
The Delhi High Court held that these changes alter the procedural position that existed under the CrPC.
Meaning of the Word “While” in Section 223 BNSS
The Court gave considerable importance to the word “while” used in Section 223 BNSS.
According to the Court, “while” has been used in a temporal sense. Therefore, when a Magistrate having jurisdiction is dealing with a complaint, the examination of the complainant and witnesses present on oath forms part of the process connected with taking cognizance.
The Court specifically held that the legislature, by introducing the word “while”, has made the examination of the complainant and witnesses a part of the process of taking cognizance rather than treating it as a stage occurring after cognizance.
Examination of Complainant and Witnesses Before Cognizance
The Delhi High Court therefore concluded that the Magistrate cannot simply treat the filing of the complaint as followed immediately by formal cognizance.
The complainant and witnesses present, where required, must first be examined on oath. Their statements are to be reduced to writing and signed as required by Section 223 BNSS.
This is a significant departure from an interpretation based purely on the earlier CrPC position. The Court observed that the earlier precedents dealing with Section 200 CrPC could not be mechanically applied because Section 223 BNSS has introduced a material legislative change.
Accused Has a Right to Be Heard Before Cognizance
The most important change under Section 223 BNSS is the first proviso to sub-section (1).
It expressly prohibits the Magistrate from taking cognizance without giving the accused an opportunity of being heard.
The Delhi High Court noted that this requirement is mandatory. Unlike the position under the CrPC, an accused now has a statutory right to be heard before the Magistrate formally takes cognizance of an offence on a private complaint.
When Should Notice Be Issued to the Accused?
The principal question before the Delhi High Court was whether notice to the accused should be issued:
- immediately after perusal of the complaint and before examination of the complainant and witnesses; or
- after examination of the complainant and witnesses but before formal cognizance.
The Court adopted the second approach.
The Magistrate should first examine the complainant and witnesses present on oath, unless the examination is exempted by the statute. The Magistrate must then consider whether the complaint deserves dismissal under Section 226 BNSS.
If the complaint does not deserve dismissal and the Magistrate forms a prima facie opinion that cognizance may be warranted, notice should then be issued to the accused. The accused must be given an opportunity of being heard before formal cognizance is taken.
Why Notice Should Not Be Issued Before Recording Statements
The Court rejected the argument that notice should necessarily be issued before recording the complainant’s and witnesses’ statements.
According to the Court, issuing notice at that earlier stage could make the newly created right of hearing ineffective or unnecessarily interfere with the recording of statements.
The accused has been given a right to be heard before cognizance, but that does not mean that the accused acquires a right to participate in or interfere with the recording of the complainant’s and witnesses’ statements.
Therefore, the meaningful stage for hearing the accused is after the relevant statements have been recorded.
Purpose of Giving the Accused an Opportunity of Hearing
The Delhi High Court considered the first proviso to Section 223(1) BNSS to be a substantive safeguard for the accused.
Under the previous CrPC regime, the accused generally had no right to participate at the stage of taking cognizance in a complaint case. The accused could, in appropriate cases, challenge an order taking cognizance or an order issuing process, but such challenges were subject to limited judicial grounds.
The BNSS has now expressly introduced an opportunity of hearing at the pre-cognizance stage.
The Court observed that the purpose of the new provision is to prevent unnecessary prejudice and harassment caused by initiation of criminal proceedings where the complaint, even if taken at face value, does not disclose the commission of an offence.
Thus, the accused can bring such limited grounds to the Magistrate’s attention before cognizance is formally taken.
Section 223 BNSS and Right to Fair Trial Under Article 21
The importance of the first proviso to Section 223(1) BNSS was further highlighted by the Supreme Court’s decision in Parvinder Singh.
As noted by the Delhi High Court, the Supreme Court held that the proviso is substantive in nature because it confers a right upon the accused to be heard before cognizance is taken.
The Supreme Court further held that this right forms part of the accused’s right to a fair trial under Article 21 of the Constitution of India.
The requirement is mandatory, and cognizance taken without compliance with the proviso would be void ab initio.
Cognizance and Issuance of Process Are Different Stages
An important aspect of the judgment is the distinction between taking cognizance and issuing process.
The Court rejected the argument that providing the accused an opportunity of hearing before cognizance would merge the stage of cognizance with the stage of issuing process.
After the accused has been heard and the Magistrate decides to take cognizance, the Magistrate still has to determine the appropriate course under the BNSS.
The Magistrate may:
- postpone issuance of process and order an inquiry under Section 225 BNSS;
- dismiss the complaint under Section 226 BNSS; or
- issue process against the accused under Section 227 BNSS.
Therefore, the stages of cognizance and issuance of process remain legally distinct.
Delhi High Court’s Procedural Sequence Under Section 223 BNSS
The judgment provides a clear procedural sequence for private complaints under the BNSS.
Step 1: Filing of the Complaint
The complaint is presented before the Magistrate having jurisdiction.
Step 2: Examination of the Complainant
The Magistrate examines the complainant on oath as required under Section 223 BNSS.
Step 3: Examination of Witnesses
Where witnesses are present and their examination is required, the Magistrate examines them on oath.
Their statements are reduced to writing and signed as prescribed.
Step 4: Consideration of Dismissal
The Magistrate considers whether the complaint deserves dismissal under Section 226 BNSS.
If there is no sufficient ground to proceed, the complaint may be dismissed.
Step 5: Notice to the Accused
If the complaint is not liable to be dismissed and the Magistrate forms a prima facie opinion that cognizance may be warranted, notice is issued to the accused.
Step 6: Opportunity of Hearing
The accused is given an opportunity to present the limited grounds as to why cognizance should not be taken.
Step 7: Formal Cognizance
Only after giving the accused the required opportunity of hearing can the Magistrate formally take cognizance.
Step 8: Further Proceedings
After cognizance, the Magistrate proceeds according to the applicable provisions concerning inquiry, dismissal or issuance of process.
This procedural sequence is consistent with the final answers given by the Delhi High Court in the reference.
Supreme Court Decisions Considered by the Delhi High Court
The Delhi High Court referred to several Supreme Court decisions while determining the effect of Section 223 BNSS.
Kushal Kumar Agarwal
The Supreme Court recognized that the proviso to Section 223(1) BNSS places an embargo on the Magistrate’s power to take cognizance without giving the accused an opportunity of being heard.
Parvinder Singh
The decision in Parvinder Singh is particularly significant because it treats the right of hearing under Section 223(1) as substantive and mandatory.
Non-compliance with the proviso vitiates the order taking cognizance.
Delhi Race Club
The Delhi High Court also considered Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh, where the Supreme Court discussed the limited nature of scrutiny at the stage of issuance of process and the circumstances in which criminal process may be interfered with.
The Delhi High Court considered the new hearing requirement under Section 223 BNSS against this background.
Dr. Lokesh B.H.
The judgment also referred to Dr. Lokesh B.H. v. State of Karnataka, particularly in relation to the principle that statutory interpretation should suppress the mischief and advance the remedy intended by the legislature.
The Delhi High Court applied this principle to give meaningful effect to the newly introduced right of hearing under Section 223(1) BNSS.
High Court Decisions Supporting the Same Interpretation
The Delhi High Court also considered decisions from various High Courts interpreting Section 223 BNSS.
The judgment referred to decisions including Brand Protectors India Pvt. Ltd., Neeti Sharma v. Saranjit Singh, Sri Basanagouda R. Patil v. Sri Shivananda S. Patil, Prateek Agarwal, Rakesh Kumar Chaturvedi, Suby Antony, Bhupendra Chaudhary and Sashidhar Jagdishan.
These decisions broadly support the interpretation that examination of the complainant and witnesses precedes the hearing of the accused and formal cognizance.
What Happens If the Complaint Is Dismissed?
An important safeguard identified in the judgment is that the accused should not be unnecessarily summoned where the complaint itself deserves dismissal.
The Allahabad High Court decision referred to in the judgment explained that after recording the statements under Section 223 BNSS, the Magistrate should first consider whether sufficient grounds exist.
If there is no sufficient ground to proceed, the complaint can be dismissed under Section 226 BNSS.
Only where the complaint is not liable to be dismissed should notice be issued to the accused for the purpose of the hearing contemplated by the proviso.
This approach ensures that the accused is not unnecessarily required to appear in a case that can itself be dismissed at the preliminary stage.
Delhi High Court’s Final Answer on Cognizance Under BNSS
The Division Bench answered the first question by holding that the Magistrate can take cognizance only after:
- examining the complainant and witnesses present on oath, unless exempted by statute; and
- giving the accused an opportunity of being heard.
Therefore, both the examination of the complainant and witnesses and the hearing of the accused are steps preceding the formal taking of cognizance.
When Must Notice Be Given to the Accused Under Section 223 BNSS?
On the second question, the Delhi High Court held that notice must be issued after examination of the complainant and witnesses, unless their examination is exempted.
The Magistrate must first form a prima facie opinion that the complaint does not deserve dismissal under Section 226 BNSS but that cognizance may be warranted.
Only then should notice be issued to the accused.
The formal decision to take cognizance can be made only after the accused has been given an opportunity of being heard.
Key Takeaways for Lawyers and Magistrates
The judgment makes the following points particularly important under the BNSS:
- Section 223 BNSS has materially changed the procedure applicable to private complaints.
- Examination of the complainant and witnesses is part of the process preceding formal cognizance.
- The accused has a statutory right to be heard before cognizance is taken.
- The right of hearing under the first proviso to Section 223(1) is mandatory.
- Notice to the accused should ordinarily follow examination of the complainant and witnesses.
- Notice should not ordinarily be issued before their statements are recorded where such examination is required.
- The Magistrate must first consider whether the complaint deserves dismissal under Section 226 BNSS.
- Cognizance and issuance of process remain distinct stages.
- After cognizance, the Magistrate may proceed under Sections 225, 226 or 227 BNSS, as applicable.
- Failure to comply with the mandatory hearing requirement can vitiate the order taking cognizance.
Significance of the Delhi High Court Judgment
The decision is significant because Section 223 BNSS has introduced a procedural safeguard that did not exist in the same form under Section 200 CrPC.
Under the earlier regime, the accused generally had no right to be heard at the stage of taking cognizance in a complaint case. The BNSS has deliberately altered that position by expressly requiring an opportunity of hearing before cognizance.
At the same time, the Delhi High Court has clarified that this new right does not mean that the accused should be brought into the proceedings before the complainant and witnesses are examined.
The sequence adopted by the Court attempts to balance two competing interests: protecting an accused from unnecessary criminal proceedings while preserving the integrity of the preliminary examination of the complaint.
Conclusion
The Delhi High Court’s judgment provides an important clarification on taking cognizance under Section 223 BNSS.
The Court has held that the Magistrate must first examine the complainant and witnesses on oath, unless their examination is exempted. If the complaint is not liable to be dismissed under Section 226 BNSS and there appears to be sufficient ground for proceeding, the accused must then be given notice and an opportunity of being heard.
Only after this hearing can the Magistrate formally take cognizance.
The judgment therefore establishes that the accused’s right to be heard before cognizance is a mandatory procedural safeguard under the BNSS, while also making clear that cognizance and issuance of process are separate stages.
For advocates handling complaint cases under the new criminal procedure regime, understanding this sequence is particularly important because non-compliance with the first proviso to Section 223(1) BNSS can have serious consequences for the validity of the cognizance order.
