Proposed Accused Withdraws Challenge With Liberty After Delhi HC Says BNSS Notice Follows Sworn Evidence, Cognizance Follows Accused Hearing

The petitioner sought quashing under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), of an order dated 21 January 2025 passed by the JMFC-03, South District, Saket Courts, in CT Cases 2771/2024.

In the pending petition, the High Court had referred questions concerning the stage for issuing notice under the first proviso to Section 223(1) BNSS to a Division Bench. The Division Bench answered those questions on 29 September 2026.

The petitioner submitted that, during the reference, the complainant led pre-summoning evidence and the Magistrate issued fresh notice to the proposed accused, but did so without first forming the prima facie opinion described by the Division Bench.

The petitioner sought to withdraw the petition to pursue appropriate remedies.

Section 223(1) BNSS requires the Magistrate, unless examination is statutorily exempted, to examine the complainant and witnesses present on oath before taking cognizance; the Division Bench held that notice to the proposed accused is to be issued after that examination and after the Magistrate forms a prima facie opinion that the complaint does not merit dismissal under Section 226 BNSS but may warrant cognizance. The formal decision to take cognizance follows only after the accused has been given an opportunity of hearing.

Section 528 BNSS was invoked as the provision under which the petitioner had brought the quashing petition.

The petitioner contended that the Magistrate’s fresh notice did not satisfy the Division Bench’s stated procedure because the required prima facie opinion had not been formed before notice was issued.

The High Court did not adjudicate that contention or determine whether the Magistrate’s procedure was lawful. Instead, it permitted the petitioner to withdraw the petition so that she could pursue appropriate remedies before the competent forum.

It further permitted her, if she pursued those remedies, to seek condonation of delay for the period during which the petition was pending; any such application is to be considered by the concerned court in accordance with law.