Delhi HC Sets Aside Early Notice In BNSS Complaint: Proposed Accused Heard After Oath Evidence, Before Cognizance

The petitioners, proposed accused in a private complaint alleging offences under Sections 227 and 229 of the Bharatiya Nyaya Sanhita, 2023, challenged the JMFC’s order directing notice to them before recording the complainant’s and witnesses’ statements on oath.

The Sessions Court dismissed their revision, holding that notice was required at that stage under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

While the matter was pending, a Division Bench of the Delhi High Court delivered its judgment in Dr. Rita Bakshi v. Seema Bajaj & Anr.; pre-summoning evidence was also led in the complaint.

Section 223(1) BNSS requires the Magistrate, unless examination is statutorily exempted, to examine the complainant and witnesses present on oath before issuing notice to the accused.

Under the first proviso to that section, notice is required after that examination and after the Magistrate forms a prima facie opinion that the complaint should not be dismissed under Section 226 BNSS, but before the Magistrate formally decides whether to take cognizance; the accused must be given an opportunity to be heard before that decision.

This rule was stated by the Division Bench in Dr. Rita Bakshi v. Seema Bajaj & Anr., 2026:DHC:8460-DB.

The petition was brought under Section 528 BNSS.

The JMFC directed notice before the complainant and witnesses had been examined on oath, and the Sessions Court upheld that direction.

The Division Bench’s subsequent ruling clarified that examination on oath ordinarily precedes notice, while notice follows a prima facie assessment under Section 226 and precedes the formal cognizance decision.

Because the challenged orders required notice at an earlier stage than Section 223(1) permits, both orders were unsustainable.

As pre-summoning evidence had since been recorded, the JMFC was directed to continue from the existing stage in accordance with the Division Bench’s ruling.

It directed the JMFC to proceed from the present stage and, if the evidence led to a prima facie opinion that the complaint should not be dismissed under Section 226 BNSS, to issue notice under the first proviso to Section 223(1) and hear the petitioners before deciding whether to take cognizance.

The petition was disposed of, with a request that the trial court expedite the matter to the extent feasible.