BNSS-Possible Pleas By The Proposed Accused At The Pre-Cognizance Stage

Before taking cognizance of an offence, on a complaint filed on or after 01.07.2024, the Magistrate shall afford the accused an opportunity of being heard. Compliance with this requirement under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS') is mandatory. In short, this is the substance of the decision rendered by the Supreme Court in the case of Kushal Kumar Agarwal.¹

Object of the provision

The first proviso to sub-section (1) of Section 223 of the BNSS puts an embargo on the power of the Court to take cognizance upon a complaint, by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. While Section 223 of the BNSS broadly retains the procedural framework of Section 200 of the Cr.P.C with respect to the examination of the complainant and his witnesses, it introduces a significant departure through the insertion of a proviso mandating that the proposed accused be afforded an opportunity of hearing before cognizance is taken. This proviso marks a substantive procedural safeguard that did not exist under the earlier regime.²

According to the Calcutta High Court, the first proviso to Section 223(1) of the BNSS is a progressive piece of legislation. The Legislature, in its wisdom, has deliberately introduced this provision, thereby conferring on the accused the right to have an opportunity of hearing at the pre-cognizance stage, despite the Legislature being obviously aware of the subsequent stages of a criminal proceeding where a right of hearing is again given to the accused.³

The Jammu and Kashmir High Court has observed that, the requirement provided under Section 223(1) of the BNSS by way of the first proviso appears to be justice orientated as the same takes care of any legitimate defence of the accused to be appreciated by the Magistrate even at the earliest.⁴ According to the Punjab and Haryana High Court, the intention of the Legislature in enacting the new provision is to afford an opportunity to the proposed accused to put forth his case at the outset and prevent the Court from wrongly taking cognizance of the offences upon a private complaint, in his absence.⁵

Abuse of law must be checked, if possible, at the very threshold, albeit when it is possible and also as per the procedure prescribed by law.⁶ Curtailing frivolous and vexatious litigation is a crucial step towards a more effective justice system. Immediately after the criminal justice system is set in motion, its course is almost entirely dependent on the judicial application of mind by the Magistrate. The Magistrate carries the stream of criminal proceeding forward after it is set in motion by the complainant. Consequently, the Magistrate also carries the responsibility for ensuring that, this stream does not carry forward in cases where it should not. On receipt of a complaint, the Magistrate must first scrutinise it to examine if the allegations made in it smack of an instance of frivolous litigation. The Magistrate has a duty to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. A falsely accused person not only suffers monetary loss but is exposed to disrepute and stigma from society. Therefore, the Magistrate has the duty to nip frivolous litigations in the bud in fit cases.⁷

By introducing the new provision, the first proviso to Section 223(1) of the BNSS, the intention of the Legislature appears to be to see that frivolous and vexatious complaints are nipped in the bud more effectively. The accused, on appearance before the Court at a stage before taking cognizance, could point out that it is not a fit case for the Magistrate to proceed further upon the complaint.

Possible pleas at the pre-cognizance stage

The ambit and scope of hearing the proposed accused at the pre-cognizance stage can be said to be extremely limited in the sense that the court, at that stage, cannot consider, one way or other, the merits of the allegations in the complaint or the defence, if any, put up by the accused. Keeping this aspect in mind, the nature of the pleas that could be raised by the proposed accused at the pre-cognizance stage may be stated as follows: (i) the court lacks jurisdiction to take cognizance of the offences alleged in the complaint (ii) the complaint is filed by a person who is not competent in law to do so (iii) the complaint or the offences alleged in the complaint are barred by limitation (iv) the court cannot take cognizance of the offence without sanction from a competent authority as prescribed by any law (v) the allegations in the complaint, even if accepted as true in its entirety, do not disclose the ingredients of any offence (vi) when there are more than one person arrayed as accused, the allegations in the complaint, even if accepted as true in entirety, do not disclose commission of any offence by one or more of them. This list is not exhaustive. Similar technical objections regarding the maintainability of the complaint may be raised by the proposed accused at the pre-cognizance stage.

As noticed earlier, at the pre-cognizance hearing stage, the court cannot consider the merits of the case set up by the complainant or the accused. The court cannot conduct a mini-trial at that stage of the case. As held by the Allahabad High Court, in a case under Section 138 of the NI Act, at the stage of the hearing provided under the first proviso to Section 223(1) of the BNSS, there is no scope for the accused to raise a plea that the cheque had been lost from his possession and that it was misused by the complainant.⁸

Can the proposed accused produce any document at the pre-cognizance stage to prove the plea raised by him? As held by the Supreme Court in the case of Debendra Nath Padhi,⁹ even at the stage of considering the question of framing charge, the Court shall not take notice of the documents produced by the accused. If that be so, the question of considering any document produced by the proposed accused at the stage of pre-cognizance hearing, does not arise at all.

Conclusion

The first proviso to Section 223(1) of the BNSS practically serves as a “filter provision” to identify frivolous and baseless complaints. A judicious application of this provision by the Magistrates/Courts would definitely enable them to nip frivolous litigations in the bud and prevent abuse of the law by unscrupulous persons.

Author is a Former Judge, High Court of Kerala. Views Are Personal.

1. KushalKumar Agarwal v. Enforcement Directorate: 2025 LiveLaw (SC) 642
2. Neeti Sharma v. Saranjit Singh: 2025 SCC OnLine Del 2329: 2025:DHC:2367.
3. TutuGhosh v. Enforcement Directorate: 2025 LiveLaw (Cal) 174.
4. Mohd. Afzal Beigh v. Noor Hussain: 2025 LiveLaw (JKL) 177
5. Gulshan Rai v. Charanjit Singh: 2025:PHHC:045034.
6. KailashVijayvargiya v. Rajlakshmi Chaudhuri: (2023) 14 SCC 1.
7. Krishna Lal Chawla v. State of Uttar Pradesh: AIR 2021 SC 1381.
8. Amit Kumar Sharma v. State of U.P: 2025:AHC:70060.
9. State of Orissa v. Debendra Nath Padhi: AIR 2005 SC 359.