Under BNSS, magistrates must hear proposed accused before taking cognizance—but only after recording the complainant’s sworn statement, Delhi HC rules

In CRL.M.C. 2551/2025, the proposed accused challenged an order directing notice under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), before the Magistrate recorded the complainant’s pre-summoning evidence.

In CRL.M.C. 3169/2026, the proposed accused challenged a similar direction, which had been upheld in revision.

A Single Judge referred questions concerning when cognizance is taken on a private complaint under the BNSS and when notice must be given to the proposed accused under the first proviso to Section 223(1).

Whether, under the BNSS, examination of the complainant and witnesses on oath is a step before cognizance, and whether it forms part of the process of taking cognizance.

Whether notice under the first proviso to Section 223(1) must be issued before or after that examination, and before the Magistrate formally decides to take cognizance.

Section 210 BNSS governs a Magistrate’s power to take cognizance; Section 223(1) requires examination on oath of the complainant and witnesses present while the Magistrate is taking cognizance, unless examination is statutorily exempted, and its first proviso bars cognizance without giving the accused an opportunity to be heard.

The Court held that Section 223 changed the Cr.P.C. position: the examination is part of the cognizance process, rather than a step occurring after cognizance.

The proviso confers a mandatory right to be heard before cognizance, consistent with Kushal Kumar Agarwal v. Directorate of Enforcement and Parvinder Singh v. Directorate of Enforcement.

The Court also relied on the principle of harmonious construction and the mischief rule: statutory provisions must be read as a whole, and the remedy introduced by legislation must receive meaningful effect.

The Court treated the word “while” in Section 223 as temporal and as making the complainant’s and witnesses’ examination part of the process of taking cognizance, departing from the settled Cr.P.C. position.

Because the accused must be heard before cognizance, but has no right under Section 223 to participate in the recording of that evidence, the Court held that notice should ordinarily follow the examination, not precede it.

That sequence gives the accused a meaningful opportunity to address the complaint and recorded statements before cognizance, while avoiding premature participation in the complainant’s evidence.

The Court clarified that this does not merge cognizance with issuance of process: after hearing the accused and deciding whether to take cognizance, the Magistrate must still consider the distinct options under Sections 225–227.

Notice under the first proviso to Section 223(1) must be issued after that examination and after the Magistrate forms a prima facie view that the complaint should not be dismissed under Section 226, but before the formal decision to take cognizance.

The referred questions were answered accordingly, and the petitions were directed to be listed before the Roster Bench.