Does accused have right to be heard before complainant? Delhi High Court refers BNSS ‘cognisance’ shift to larger bench

(2) At what stage is the magistrate required to issue notice to the accused in compliance with the first proviso to Section 223(1) of the BNSS – whether (a) upon perusal of the complaint but before recording of the statement of the complainant and witnesses, if any, or (b) after recording such statements but before a formal decision on taking cognisance?

The proceedings before the magistrate shall continue, subject to any other order passed by the larger bench, the court said.

“The matter warrants reference to a larger bench of this court, subject to orders of the Chief Justice, for determination of the controversy in question, ” the March 24 order noted.

Scope of cognisance: CrPC v BNSS 

• Section 200(1) of the CrPC employed the expression, a magistrate taking cognisance of an offence on complaint shall examine upon oath the complainant, Section 223(1) of the BNSS now provides that, a magistrate having jurisdiction, while taking cognisance of an offence on complaint, shall examine upon oath the complainant.
• Section 223 of the BNSS deals with the examination of the complainant and provides that a magistrate, while taking cognisance of an offence on a complaint, shall examine upon oath the complainant and the witnesses present, if any. 
• The first proviso, however, introduces a significant departure from earlier Section 200 of CrPC, by stipulating that no cognisance of an offence on complaint shall be taken without giving the accused an opportunity of being heard.
• The present case raises an important question of interpretation of a newly introduced statutory proviso, which this court deems appropriate to examine the legal position governing the concept of taking cognisance and its stage. 

Court’s view

• This court has considered the authorities cited by the counsel for the respondent, particularly the meaning and stage of taking cognisance and the distinction between taking cognisance, issuance of process, and proceedings under Chapter XV of the CrPC (corresponding to Chapter XVI of the BNSS).
• The proceedings before the magistrate in the present case shall continue, subject to any other order passed by the larger bench in this regard.

•  The Supreme Court, in a catena of decisions, has held that taking cognisance is a term of wide import and signifies the application of the judicial mind by the Magistrate to the facts of the case for the purpose of proceeding in a particular manner. 
• It is neither synonymous with the issuance of process nor with any specific procedural step, and whether cognisance has been taken depends upon the facts and circumstances of each case.
• At the same time, it is also necessary to appreciate that the interpretation adopted in the aforesaid decisions, by the coordinate bench and other High Courts, may have been influenced by the change in statutory language brought about by the enactment of the BNSS.

Magistrate’s order

• The issue pertained to the interpretation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and in particular, the scope and effect of the newly introduced first proviso to Section 223(1) of BNSS, which mandates that the magistrate shall take no cognisance of an offence on a complaint without affording the accused an opportunity of being heard.
• A complaint was filed by the respondent-complainant against eight accused persons, including the petitioner, alleging the commission of offences punishable under Sections 420, 120B, 34, 35, and 37 of the Indian Penal Code, 1860.
• The matter was heard on December 11, 2024 and was listed for the recording of pre-summoning evidence on April 25, 2025. 
• Subsequently, the complainant moved an application before the magistrate praying that, in terms of Section 223 of BNSS, notice be issued to the accused persons before taking cognisance and recording the complainant’s statement. 
• On January 21, 2025, the magistrate passed the order issuing notice to the petitioner to appear before the court within seven days.

Opportunity to be heard

• Advocates, Rakesh Malhotra, Bharat Malhotra and Smritika Kesri, representing the petitioner contended that since the first proviso to Section 223(1) of the BNSS mandates that the accused must be heard before cognisance is taken, such an opportunity of hearing can arise only after the magistrate has perused the complaint and recorded the statement of the complainant and witnesses, under Section 223(1) of the BNSS.
• It is argued that only upon such examination mentioned above, the magistrate is in a position to apply a judicial mind to the material on record, and subsequently issue notice to the accused for a hearing on the question of whether cognisance ought to be taken. 
• According to the counsel for the petitioner, the issuance of notice to the accused must follow the recording of pre-summoning evidence, i.e. statement of the complainant and witnesses, if any, though both stages would still fall before formal taking of cognisance. 
• The counsel relied on the High Courts of Karnataka, Allahabad and Kerala, as well as judgments of coordinate benches of this court, wherein while interpreting Section 223(1) of the BNSS and its proviso, it has been held that upon receipt of a complaint, the magistrate must first examine the complainant and witnesses, if any, and only thereafter issue notice to the accused, to enable the accused to effectively respond on the question of cognisance after perusing not only the complaint but also the pre summoning evidence tendered by the complainant.

Post-cognisance exercise

• Advocates Raajan Chawla, Pallavi Yadav and Lavanya Chadha, appearing for the complainant, have opposed the aforesaid interpretation and have argued that the premise underlying the petitioner‘s contention is legally untenable. 
• It was submitted that the law laid down by the Supreme Court in a catena of judgments is that cognisance of an offence is taken upon application of the judicial mind to the complaint, and once the magistrate proceeds under Section 200 of the CrPC (now Section 223 of the BNSS), it necessarily implies that cognisance has already been taken. 
• It was contended that the recording of the statement of the complainant and witnesses is a post-cognisance exercise. 
• It was argued that in view of the proviso to Section 223(1) of BNSS, which prohibits taking cognisance of offence without affording an opportunity of hearing to the accused, such notice must necessarily be issued before the recording of the complainant‘s statement under Section 223(1) of BNSS, as any such recording of statement would itself presuppose that cognisance has already been taken by the magistrate.