Accused Must Be Heard Before Taking Cognizance on a Complaint Under BNSS, Tripura High Court Rules

Kotak Mahindra Bank Ltd. filed a complaint before the Chief Judicial Magistrate, West Tripura, Agartala, on 12.07.2024 against the petitioners and others alleging offences under Sections 61(2), 314, 316, 318, 320, 321, 323 and 324 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”).

On the same day, the CJM took cognizance of the alleged offences and transferred the matter to the Court of the Judicial Magistrate First Class, Court No. 3, Agartala, without providing the accused an opportunity of being heard.

The petitioners challenged the order dated 12.07.2024 under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), contending that it violated the newly introduced proviso to Section 223(1) BNSS.

The State argued that there was no illegality because the CJM had neither examined the complainant nor recorded witness statements and had merely transferred the complaint for disposal.

Whether a Magistrate, after the BNSS came into force on 01.07.2024, can take cognizance of an offence on a complaint without first giving the accused an opportunity of being heard under the proviso to Section 223(1) BNSS?

Whether the CJM’s order dated 12.07.2024 taking cognizance and transferring the complaint without hearing the accused was legally sustainable?

The Court applied Section 223(1) BNSS, which requires a Magistrate taking cognizance of an offence on complaint to examine the complainant and witnesses present, subject to statutory exceptions, and expressly provides that “no cognizance of an offence shall be taken…without giving the accused an opportunity of being heard”.

It relied principally on Kushal Kumar Agarwal v. Directorate of Enforcement, (2025) Supreme (SC) 919, holding that the proviso to Section 223(1) BNSS imposes an embargo on taking cognizance without hearing the accused and that non-compliance vitiates the cognizance order.

The Court distinguished Raghubans Dubey v. State of Bihar, 1967 SCC OnLine SC 3, and State of West Bengal v. Manmal Bhutoria, (1977) 3 SCC 440, as cases not concerning the mandatory hearing requirement introduced by Section 223 BNSS.

The complaint was filed on 12.07.2024, after the BNSS came into force on 01.07.2024; therefore, the procedure under Section 223 BNSS applied.

The Court interpreted the proviso to Section 223(1) as mandatory and held that the Magistrate had to afford the accused an opportunity of hearing before taking cognizance.

The fact that the CJM did not record the complainant’s or witnesses’ statements, and transferred the complaint to another Magistrate, did not cure the defect, because the illegality occurred at the stage when cognizance itself was taken without compliance with the statutory precondition.

The Supreme Court’s decision in Kushal Kumar Agarwal directly supported setting aside a cognizance order passed without such hearing.

The older authorities cited by the State concerned the nature of cognizance and the power to proceed against additional accused, but did not address the newly enacted proviso to Section 223(1) BNSS.

Accordingly, the CJM’s order was held to be contrary to law, an abuse of the process of court and without jurisdiction.

It held that, for complaints filed after 01.07.2024, a Magistrate must hear the accused before taking cognizance under Section 223 BNSS.

The matter was remanded to the CJM, West Tripura, Agartala, for fresh consideration and proceedings in accordance with Section 223 BNSS.

The parties were directed to appear before the CJM on 22.09.2026, and copies of the order were directed to be circulated to all criminal courts in Tripura.