Cognizance At Crossroads: An Analytical Examination Of The Proviso To Section 223(1) Of The BNSS
With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for brevity, 'BNSS'), the Indian criminal justice delivery system has undergone a significant procedural overhaul. While the new codified law aims at to modernize the legal framework to expedite the justice delivery system in India, certain provisions capsulated therein have raised concerns about their compatibility with constitutional values and established jurisprudence. One such provision is the proviso to Section 223(1) of the BNSS, which mandates that in complaint cases, the Magistrate must issue notice to the accused and afford them an opportunity to be heard before taking cognizance[1]. At first blush, this appears to be a safeguard against misuse of the process[2]. However, a closer examination reveals that it disrupts long-standing principles of criminal procedure, introduces procedural redundancy, and risks infringing fundamental rights under Articles 14 and 21 of the Constitution.
From Offence to Offender: The Jurisprudential Shift in Section 223 BNSS
The proviso to Section 223 of the BNSS marks a significant departure from the well-settled principle of criminal procedure that 'cognizance is taken of the offence and not of the offender'. This foundational doctrine, repeatedly upheld by the Hon'ble Supreme Court, holds that at the stage of cognizance, the Magistrate is required only to determine whether the facts disclose a prima facie commission of an offence. [see Prasad Shrikant Purohit v. State of Maharashtra[3]] The identity of the accused is not determinative at this stage, as the process is offence-centric rather than person-centric. However, the new proviso undermines this jurisprudential clarity by mandating that the accused be given an opportunity of hearing before cognizance is taken. This presupposes the existence of an identifiable accused, thus distorting the very rationale of the cognizance stage.
In practice, this requirement creates significant procedural confusion and renders the provision unworkable in a wide range of common cases. For example, in a case involving theft under Section 303 BNS (corresponds to 379 IPC), after failing to trace the accused, the police filed a cancellation report under Section 193 BNSS (Section 173 CrPC). Dissatisfied with the police investigation and alleging mala fide, the complainant filed a protest petition in the form of private complaint, under Section 223 BNSS. Since the identity of the accused was unknown, the complaint was filed under the title “Complainant v. Unknown and others”. Similarly, in cyber fraud cases where victims are often unaware of who committed the offence and police takes no action, they are left with no option but to approach the Magistrate under Section 223 BNSS.
In both cases (supra), the requirement to hear an accused before taking cognizance becomes legally absurd and practically impossible, as there is no accused before the Court that can be afforded an opportunity of hearing. This undermines the complainant's right to seek redress and obstructs the court's ability to take cognizance of cognizable offences simply because the accused is unknown at the outset.
Introducing a pre-cognizance hearing, especially when the accused is unknown, contradicts the spirit and structure of the law. It also creates procedural redundancy and confusion, in such cases where immediate judicial intervention is sought due to investigative lapses. Such a mandate not only delays justice but also risks violating the complainant's constitutional right to access legal remedies and fair procedure.
Two Tracks, One Destination: The Duplication of Procedural Safeguards
The procedural overlap introduced by the proviso to Section 223(1) of BNSS raises serious concerns about legal consistency and administrative efficiency as well, because Sections 225 to 227 of BNSS provide a comprehensive framework for 'inquiry', 'dismissal', and 'summoning of the accused' post-cognizance. By requiring a 'pre-cognizance hearing for the accused', the proviso creates a parallel procedural track that not only burdens the Magistrate with an unnecessary preliminary process but also risks rendering the post-cognizance safeguards under Section 227 of BNSS redundant. The absence of a non-obstante clause in Section 223 further exacerbates the problem. It suggests that the proviso does not override the main statutory framework but sits awkwardly beside it, undermining the coherence of the procedural scheme rather than complementing it. Instead of speeding up and enhancing justice delivery system, this duplication of safeguards slows it down, inasmuch as, the new provision has introduced confusion, and leads to premature judicial conclusions without full evidentiary scrutiny.
This issue becomes more evident when examined through practical scenarios. As an instance, in a case under Section 318 BNS (420 of IPC), where a complainant alleges cheating against company and its directors for having duped him of huge amount of money and invokes the court's jurisdiction under Section 223 of BNSS. The Magistrate, constrained by the proviso, must first issue a notice to the proposed accused. Suppose the proposed accused appears and argues that he was not a director of the company at the time the cheque was issued. The court, based on documents presented at this preliminary stage, agrees and declines to summon him. While this may appear efficient, it bypasses the full procedural mechanisms laid down in Sections 225 to 227, which are intended to afford both parties an opportunity to present evidence and undergo a complete inquiry. The court's decision to drop proceedings at such a nascent stage, based on a limited and possibly one-sided factual matrix, risks prematurely terminating a complaint that could have stood on firmer ground had full proceedings been allowed.
What if, in the above example, the accused, though not formally a director at the time, was actively managing the company's affairs under a board resolution? Such nuanced facts would likely only emerge in a full-fledged inquiry under Section 227, where cross-examination, documentary evidence, and legal arguments can be properly presented. However, by introducing a pre-cognizance hearing without clearly defining its scope or procedural safeguards, the proviso to Section 223(1) creates ambiguity.
The Uncharted Terrain of Pre-Cognizance Hearings under Section 223(1) BNSS
Another significant area of concern arising from the proviso to Section 223(1) BNSS is the lack of clarity in the language of the provision itself. While the proviso mandates that a reasonable opportunity of hearing be given to the accused before the Magistrate takes cognizance of a complaint, it is entirely silent on the nature, scope, and procedural structure of such a hearing. This opens the door to a host of interpretative and procedural challenges.
To begin with, the proviso does not clarify whether the hearing is intended to be summary in nature or a more detailed and quasi-judicial proceeding. There is no mention of whether the accused is allowed to present documents, lead evidence, or cross-examine the complainant. Nor does it specify the extent of judicial scrutiny required at this stage, or the legal standard to be applied by the Magistrate in deciding whether or not to proceed further with the complaint. Additionally, there is no guidance on the kind of order the Magistrate is supposed to pass after conducting such a hearing. Is it a speaking order with reasons? Is it treated as equivalent to an order under Section 226 or Section 227 of the BNSS. These ambiguities create a legal vacuum that can lead to arbitrary or inconsistent interpretations across different courts.
Let us consider a practical example to illustrate this problem. Suppose a complaint, under Section 316 BNSS (Section 406 IPC), alleging criminal breach of trust, is filed against a person alleging that he misappropriated funds that were entrusted to him. The Magistrate, acting under the proviso to Section 223(1), issues notice to the proposed accused even before taking cognizance. The accused appears and submits that no trust was ever created and that the transaction was purely civil in nature. He produces some documents such as a loan agreement or WhatsApp chats in support of his version. In such scenario, the Magistrate would be in a difficult position. Should he evaluate this piece of evidence in detail before taking cognizance? Can the Magistrate dismiss the complaint at this pre-cognizance stage by relying on the documents produced by the accused alone, without even hearing the complainant's evidence or considering the full factual context? Can the Magistrate reject the complaint based on preliminary impressions without invoking the procedural safeguards under Sections 225 to 227 of BNSS, where a proper inquiry is envisaged after cognizance is taken?
Worse still, what if the complainant argues that the accused's documents are forged or misleading, and that he should be allowed to lead oral evidence, call witnesses, or cross-examine the accused's claims before the Magistrate makes a determination? No mechanism has been provided in the framework of the BNSS that how such procedural disputes should be resolved at the pre-cognizance stage, thereby placing the Magistrate in a legally precarious situation. If the Magistrate chooses to accept the accused's version and drop the complaint, the complainant may argue that he has been denied a fair hearing. Conversely, if the Magistrate proceeds to summon the accused, the latter may claim that his right to be heard under Section 223(1) was illusory, especially if no meaningful opportunity to present his case was given. This creates a lose-lose situation, where both sides may feel aggrieved, and the court risks violating either the complainant's right to a full inquiry or the accused's right to be heard.
Such an undefined and open-ended procedure also risks violating the 'principles of natural justice', particularly the principle of 'audi alteram partem', in both directions. A vague “hearing” that is either too superficial or too elaborate, without any guiding framework, can lead to decisions that are either premature or procedurally excessive, neither of which is consistent with the goal of fair trial or efficient adjudication. Furthermore, without a clear procedural mandate, different Magistrates may adopt divergent practices across jurisdictions. Some may treat the hearing as a mere formality, while others may convert it into a full-fledged mini-trial. This destroys uniformity in judicial process and undermines judicial discipline.
Timing Matters: When Does Cognizance Begin Under BNSS?
An illustrative example brings the issue into sharper focus. In a pending complaint case involving cheating on ground of cheque dishonour under Section 318 of BNS (section 420 IPC), a Magistrate, before formally taking cognizance, dropped two out of seven accused and issued notices to the remaining five. This act raises an important question: was the Magistrate merely performing a mechanical duty, or had judicial mind already been applied? If the Magistrate evaluated the complaint to determine that only five persons deserved to be proceeded against, it clearly indicates that cognizance had already been taken. Conversely, if issuing notice is purely mechanical, all seven should have received it. The ambiguity surrounding the legal status of such a “pre-cognizance” notice blurs procedural clarity and raises fundamental doubts about the legitimacy of the process.
Arbitrary Classification and Violation of Article 14 of the Constitution
Another glaring concern with the proviso to Section 223(1) BNSS is the unequal procedural treatment it creates based purely on the origin of the criminal case, i.e., whether it stems from a private complaint or a police report (FIR). The proviso applies exclusively to complaint cases, requiring that a person proposed to be summoned as an accused must first be afforded a “reasonable opportunity of being heard” before cognizance is taken. However, no such safeguard is available in cases arising from a police investigation. For example, consider a case where a person is named as an accused in an FIR alleging cheating under Section 318 BNS (Section 420 IPC). The police conduct an investigation, record statements, and eventually file a final report (chargesheet) under Section 193 BNSS. At this point, prior to cognizance, the court is not required to issue any notice or grant any opportunity to the accused to explain why he should not be prosecuted. The Magistrate can take cognizance of the offence and proceed to frame charges or issue summons without any participation from the accused. In contrast, if the same set of facts were to be the subject of a private complaint, the court would be compelled under the proviso to Section 223(1) BNSS to provide a pre-cognizance hearing to the proposed accused. This disparity is not grounded in any intelligible differentia, nor does it bear a rational nexus with the objective of ensuring a fair trial or protecting individual rights. The accused in both cases are similarly situated facing potential criminal prosecution and deprivation of liberty, yet the procedural protection is extended only in one category. Such asymmetrical treatment, without any compelling justification, is questionable being violative of Article 14 of the Constitution, which prohibits arbitrary classification and mandates equal treatment under law[4]. The provision, as it currently stands, risks institutionalizing procedural discrimination, thereby undermining the fairness, consistency, and legitimacy of the criminal justice process.
Undermining the Complainant's Right to Timely Justice
While much has been said about safeguarding the accused, it is equally important to protect the complainant's right to timely justice. The additional procedural hurdle under Section 223(1) of BNSS essentially delays the initiation of trial, frustrating the complainant's legitimate expectations. Under the old Code, the accused had ample opportunities to be heard through summons, discharge applications, and at trial. The new provision introduces an unnecessary procedural bottleneck that benefits no one and harms the pace of justice.
Conclusion
The proviso to Section 223(1) of the BNSS, while ostensibly aimed at preventing abuse of the legal process, ends up doing more harm than good. It is a provision that contradicts settled jurisprudence, creates procedural contradictions, delays justice, and violates the equality and liberty guaranteed under Articles 14 and 21.
In the name of reform, the legislature appears to have introduced a measure that is both theoretically unsound and practically unviable. Unless revisited by Parliament or read down by the judiciary, this provision threatens to undermine the efficiency and fairness that the BNSS claims to uphold.
The views expressed in this Article are based upon the legal acumen of the author, and any analytical criticism or contrary view involving detailed examination and subjective evaluation thereof is always welcome.
Author is Addl. Civil Judge (Sr. Division), District Court Narnaul . Views Are Personal.
A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard ↑
Sikandar Singh v. Directorate of Enforcement, Gurugram, CRM-M-29954-2025, decided on 29.07.2025 [P&H HC] ↑
AIR 2017 SC 3986 ↑
Reliance is placed on “Mannargudi Bar Association v. UOI & ors”, Writ petition no. 625/2024, Supreme Court of India ↑