[Section 223 BNSS] Notice Of Hearing Can Be Issued To Prospective Accused Only After Examining Complainant And Witnesses: Kerala High Court

For context, Section 223 of BNSS pertains to examination of complainant. The provision states that magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. It adds that the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses as well as by the Magistrate. The first proviso states that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

Justice V.G. Arun observed that the first proviso of Section 223(1) of the BNSS introduced a "radical change," as the corresponding provision in the CrPC, Section 200, did not require the accused to be heard before taking cognizance. The first proviso to Section 223 (1) now mandates that the Magistrate must give the accused an opportunity to be heard before taking cognizance of an offence. The Court also stated that it is in agreement with the Karnataka High Court decision in Basanagouda R Patil (Yatnal) and Shivananda S Patil  (2025). 

Outlining the procedure to be followed for issuance of notice to the accused the Court stated thus, 

“Being guided by the precedents on Sections 200 and 202 of the Code and the plain language of the proviso to Section 223(1) of the BNSS, this Court is of the opinion that , after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused.”

In the facts of the case, the Counsel for Petitioner argued that Magistrate erred in issuing notice to the accused even before examining the Petitioner and his witnesses on oath as per Section 223(1) of the BNSS. It was also submitted that accused needs to be issued notice only at the stage of taking cognizance.

The Court took note of the fact that the first proviso in Section 223 (1) of the BNSS was absent in Section 200 of CrPC, which is the corresponding provision in the Code.

For context, first proviso to Section 223 (1) is, “Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:”

Court stated that hearing of accused is made mandatory under Section 223 (1) of the BNSS so that the Magistrate could decide whether or not to take cognizance. It said, “Presumably, the purpose behind the proviso is to provide an opportunity to the Magistrate to assimilate the correct facts, for deciding whether or not to take cognizance of the offence.”

Further, the Court stated that the term cognizance is not defined under BNSS. Relying upon Apex Court decision in S.K.Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Others (2008), the Court stated that taking cognisance of an offence occurs when Magistrate takes judicial notice of an offence for initiating proceedings. It stated that once cognizance of an offence is taken, then the Magistrate has to decide whether to issue process to the accused or not.

The Court also noted that the objection of the accused is not made a relevant factor for dismissing a compliant at the stage of taking cognizance as per Section 226 of the BNSS for dismissing a complaint.

It stated, “Pertinently, in spite of the proviso to Section 223(1) making it mandatory to provide opportunity of hearing to the accused before taking cognisance, Section 226 does not reckon the accused's objection at the stage of taking cognisance as a relevant factor for dismissing the complaint.”

As such, the Court quashed the notice issued to the accused. It thus directed the Magistrate to examine the petitioner and witnesses on oath before issuing notice of hearing to the accused. 

Counsel for Petitioner: Advocate Shaju Francis

Counsel for Respondents: Senior Public Prosecutor Pushpalatha. M.K

Case Title: Suby Antony v R1 (Deleted)

Case No: CRL.MC NO. 508 OF 2025

Citation: 2025 LiveLaw (Ker) 64