Cognizance without hearing the accused under Section 223(1) BNSS is void ab initio.

Respondent No. 2 filed a private complaint alleging that, during the by-election at Polling Station, Andhupura, on 13 November 2024, the appellants formed an unlawful assembly, committed electoral malpractice, physically assaulted him, and hurled caste-based abuses at him in public view.

An inquiry conducted by the Sub-Divisional Officer of Police, Vijaypur, concluded that the alleged incident had not occurred and that the allegations were false.

Nevertheless, after recording the statements of the complainant and his witnesses, the Special Judge (Atrocities), Sheopur, took cognizance of offences under Section 115(2) of the Bharatiya Nyaya Sanhita, 2023, read with Section 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and issued bailable warrants against the appellants by order dated 9 December 2025.

The appellants challenged that order under Section 14-A(1) of the 1989 Act, principally contending that they had not been afforded an opportunity of hearing before cognizance was taken, as mandated by the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

Whether the Special Court could take cognizance of the private complaint without first granting the appellants an opportunity of hearing under the first proviso to Section 223(1) of the BNSS?

Whether cognizance taken and bailable warrants issued without compliance with the statutory hearing requirement were liable to be quashed and the matter remanded for fresh consideration?

The Court applied the first proviso to Section 223(1) of the BNSS, which prohibits a Magistrate from taking cognizance of an offence on complaint without giving the accused an opportunity of being heard.

The Court held that this proviso incorporates the principle of audi alteram partem at the pre-cognizance stage, confers a substantive right connected with the accused’s right to a fair trial under Article 21 of the Constitution, and is mandatory because of the use of the word “shall”.

Relying on Parvinder Singh v. Directorate of Enforcement, 2026 LiveLaw (SC) 522, the Court held that cognizance taken without compliance with the proviso is void ab initio.

The Court also proceeded under Section 14-A(1) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, which provides the appellate remedy against orders of a Special Court under the Act.

The impugned order showed that the Special Court recorded the complainant’s and witnesses’ statements and proceeded directly to take cognizance and issue bailable warrants, without issuing prior notice to or hearing the appellants.

Since Section 223(1) of the BNSS expressly requires an opportunity of hearing before cognizance is taken, and the Supreme Court in Parvinder Singh had characterized the requirement as mandatory and substantive, the omission constituted a patent procedural illegality.

The Court therefore held that the merits of the allegations, including the SDOP’s conclusion that the complaint was false, could not be adjudicated at this stage; the defect lay in the failure to follow the mandatory pre-cognizance procedure.

The order dated 9 December 2025 taking cognizance and issuing bailable warrants against the appellants was quashed and set aside.

The matter was remanded to the Special Judge (Atrocities), Sheopur, with directions to issue formal notice to the appellants, afford them a fair and proper opportunity of hearing in compliance with the first proviso to Section 223(1) of the BNSS, and thereafter pass a fresh, reasoned order on cognizance independently and in accordance with law.

The Court clarified that it had expressed no opinion on the merits of the allegations.