'Notice Must Be Issued To Accused Before Conducting Pre-Cognizance Hearing U/S 223 Of BNSS': Calcutta High Court Frames Guidelines

The Calcutta High Court has highlighted the scope of, and framed guidelines for conducting pre-cognisance hearings under Section 223 of the Bharatiya Nyaya Suraksha Sanhita (BNSS).

Justice Dr Ajoy Kumar Mukherjee held: “Therefore, the procedure that needs to be followed on receipt of a complaint, in view of section 223 and concerned relevant provisions under the BNSS, would be as follows:-

(a) Once, a complaint is filed, after registering the same, the court has to issue a notice to the proposed accused person/persons;

(b) Such notice may be served by way of registered post with acknowledgement due and/ or through electronic mode under the scheme of BNSS as envisaged in chapter VI-A.

(c) In such notice, it has to be mandatorily mentioned that the purpose of such notice is to provide a right of hearing at a pre-cognisance stage. The notice must also incorporate that the proposed accused may either appear by person or through his lawyer. The notice must also indicate that the proposed accused may avail of the facilities of legal aid in terms of the provisions under the Legal Services Authorities Act, 1987, if he so qualifies;

(d) Once in terms of such notice, an accused appears in person or through his lawyer, pre-cognizance hearing has to be conducted. The result of such hearing has to be communicated to both the parties.

(e) In case despite hearing, the learned Magistrate proposes to take cognizance, the accused will have no further participation in the proceeding till issuance of process under section 227 of the BNSS.

Since in the present case the order of taking cognizance is passed without adhering to proviso to section 223 of the BNSS, the impugned orders are hereby set aside,” the court said.

Background 

The petitioners were charged for offences punishable under sections 115(1) /115(2) /118(1) /117(2) /126(1) /329(3) /351(2)/351(3) of the Bharatiya Nyaya Sanhita, 2023 (BNS, 2023).

It was submitted that the CJM took cognisance straightway on perusal of complaint and transferred the case to the court of judicial Magistrate 1st Court, for disposal, in contravention of section 223(1) of the BNSS without affording an opportunity to the petitioners of being heard before taking such cognizance. 

It was submitted by the petitioners that the impugned order whereby purported cognizance was taken by the CJM is de hors the edict of law as under section 223 of the BNSS, since the petitioners, being the alleged accused were not afforded an opportunity of being heard before such cognisance was taken and therefore, the impugned orders by which the cognizance was taken and the process was issued ought to be set aside.

Counsel appearing on behalf of the opposite party submitted that under the old law, there was no provision regarding giving accused an opportunity of being heard before the cognisance of an offence is taken by the Magistrate. 

It was argued that section 223 (1) of BNSS is in pari materia to section 200 Cr.P.C., the distinction is that in section 200 Cr.P.C. the words used by the legislature were 'a magistrate taking cognizance of an offence'. while the words used in section 223(1) BNSS are 'a magistrate having jurisdiction while taking cognizance of an offence'. 

Thus, it was submitted that the legislature has specifically stated in section 223 (1) BNSS that cognizance of an offence is a process which starts when the magistrate proceeds with the complaint under chapter XVI of BNSS 2023 and examines the complainant and his witnesses and takes further steps and before the cognizance is finally taken.

As per the proviso, the magistrate is required to give an opportunity of hearing to the accused, it was stated.

He further argued the proviso to Section 223 mandates that no cognizance of an offence shall be taken by the magistrate without giving the accused an opportunity of being heard. 

Therefore, to clear the obfuscation it is necessary to look into the language deployed therein. The magistrate while taking cognizance of the offence should have with him the statement on oath of the complainant and if any witness is present his statement, counsel said.

The taking of cognizance under section 223 of BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being hear, it was said.

Contradicting petitioners counsel's argument, it was submitted that non-compliance with any procedural requirement relating to complaint should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects or irregularities which are curable, should not be allowed to defeat the substantive rights or to cause injustice. 

It was stated that action taken by the court below within its jurisdiction cannot be held to be invalid for mentioning a wrong section or other provision of law in its order. It is well settled that if an authority has jurisdiction to take particular action, mere mention of incorrect provision or non-mention of correct provision does not make the action without jurisdiction, unless it is shown that the authority has no jurisdiction.

Court's findings 

Upon delving into S.223 of the BNSS and it's provisos, the court noted that it is apparent from the impugned order dated 13th September, 2024 that the concerned magistrate took cognizance without hearing the proposed accused persons/petitioners in terms of proviso to section 223 (1) of the BNSS. 

Court noted that it was evident that the trial court proceeded to examine the opposite party under section 223 (1) of the BNSS and thereafter issued process to the accused persons.

It was stated that many High Courts across the country have unanimously taken a view that the proviso to section 223(1) is compulsory in nature and any order taking cognizance in complete disregard to the provisions of BNSS has been held to be illegal. 

It was held that though under the BNSS, the term 'cognizance' has not been defined but it means application of mind for proceeding further in a broad way as indicated in various judgments.

Court noted that upon conducting a comparative study of the relevant provisions of the Cr.P.C. and the BNSS it would be evident that the provisions of pre cognizance hearing has been introduced by the legislature by insertion of the proviso to section 223 (1) of BNSS. 

However, the other portions of the relevant provisions have been kept intact. Since the other provisions remains unaltered therefore, there can hardly any scope of departure from the interpretation as made by the Apex Court in various judgments on the same, it was said.

“Therefore, there can be no occasion for a magistrate to examine the complainant prior to taking cognizance. Needless to reiterate that the cognizance is taken of an offence whereas order of process is issued against the offender and at the time of taking cognizance the court has to see only existence of a prima facie offence and the issue of offender's individual role, liability, responsibilities etc. does not fall for consideration before the court at the time of taking cognizance,” the court said. 

It was noted that only once cognizance was taken, the question of determination of the role of the persons arraigned as proposed accused will come and therefore in order to determine their role, court has to examine the complainant and his witnesses if any, on oath under section 223 of the BNSS. 

The preamble of the BNSS which replaces the Code of Criminal Procedure 1973 aims to consolidate and amend the law relating to Criminal Procedure. Therefore, while interpreting BNSS as a consolidating statute judicial decisions on previous statute are to be taken into consideration, as the parliament must be aware of the decisions of the courts in the meantime, it was said.

Accordingly, the magistrate's order was set aside.

Case: Kaberi Dey & Ors. Vs. Sourav Bhattacharjee

Case No: CRR 119 of 2025

Citation: 2025 LiveLaw (Cal) 173

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