The Delhi High Court has held that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Magistrate must first examine the complainant and the witnesses present on oath, unless such examination is statutorily exempted, and thereafter hear the accused before formally taking cognizance of an offence.

The Court was hearing two petitions placed before a Division Bench for answering a reference concerning the stage at which cognizance is taken on a private complaint and the correct time for issuing notice to the accused under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

A Bench of Justice Navin Chawla and Justice Ravinder Dudeja held: “The Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless it is exempted by the statute, and giving an opportunity to the accused to be heard. Therefore, under Section 223(1) of the BNSS, the examination of the complainant and the witnesses present on oath, unless exempted, and hearing the accused, are steps prior to taking the cognizance of the offence by the Magistrate.”

The Bench further held: “The Magistrate is required to issue a notice to the accused, in compliance with the first proviso to Section 223(1) of the BNSS, after examining the complainant and the witnesses present on oath, unless exempted, and forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226 of the BNSS but cognizance may deserve to be taken of the offence. However, formal decision of taking cognizance can be taken by the Magistrate only after granting an opportunity of being heard to the accused.”

Senior Advocate Pavan Narang appeared for the petitioners. Advocate Raajan Chawla appeared for the complainants, while APP Aman Usman appeared for the State and CGSC Amit Tiwari appeared for the Union of India.

Background

In one petition, the proposed accused challenged an order by which a Judicial Magistrate had issued notice under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before recording the complainant’s pre-summoning evidence. In the connected petition, the proposed accused challenged orders directing notice immediately upon receipt of the private complaint.

A Single Judge noticed that earlier Delhi High Court decisions and rulings from other High Courts had held that the complainant and witnesses must first be examined, following which notice should be issued to the accused before cognizance is formally taken.

The Single Judge, however, found an apparent divergence between this interpretation and Supreme Court precedents explaining that, under the Code of Criminal Procedure, 1973, cognizance occurred when the Magistrate applied judicial mind to the complaint with a view to proceeding under the complaint-case provisions. The questions were consequently referred to a larger Bench.

Court’s Observations

The Court observed that Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 introduced two material changes from Section 200 of the Code of Criminal Procedure, 1973. One was the addition of the words “having jurisdiction while”, while the other was the first proviso prohibiting cognizance without hearing the accused.

The Bench stated that the word “while” was used in its temporal sense. It indicated that examination of the complainant and witnesses must occur during the process of taking cognizance, rather than after cognizance has already been taken.

The Court observed: “Therefore, instead of the stage of the examination of the complainant and the witnesses present, being subsequent to the Magistrate taking cognizance, as was the position in the Cr. P.C., the legislature, by using the word ‘while’ has made the process of examination of the complainant and the witnesses a part of the process of the Magistrate taking cognizance of an offence on a complaint.”

The Bench added that Section 223 had altered the position prevailing under the Code of Criminal Procedure, 1973, under which cognizance preceded examination of the complainant and witnesses. The Court held that precedents explaining the former procedure could not be applied without accounting for the changed statutory language.

The Court observed that the first proviso to Section 223(1) formally conferred upon the accused a right to be heard before cognizance. The Bench stated that the provision sought to address the prejudice caused when criminal proceedings were initiated without allowing the accused to point out threshold defects in the complaint.

The Court explained that issuing notice after the sworn statements are recorded enables the accused to respond to the complaint and supporting material. Issuing notice before that stage would require the accused to answer unverified allegations and could restrict the statutory safeguard.

The Bench remarked: “The proviso added to Section 223(1) of the BNSS is therefore to address a mischief where the criminal process was initiated against an accused leading to a serious prejudice to an accused but without giving him an opportunity of being heard. It is intended to be a remedial provision beneficial to the accused, where the accused can show to the Magistrate the limited grounds that have already been recognized by the Courts where the cognizance of an offence should not be taken by the Magistrate, like the one detailed by the Supreme Court in Delhi Race Club (supra) and other such judgments. Such provision must be given full force and should be made effective. The only way to make it effective is that the notice required by the proviso to Section 223(1) of the BNSS, is issued to the accused after the Magistrate has examined the complainant and its witnesses. This would give to an accused a fair and proper opportunity of being heard on the question of whether the Magistrate should or should not take cognizance of the offence. Issuing notice to the accused prior to that stage would in fact be a futile exercise and shall restrict the right which otherwise has been conferred upon such accused by the legislature purposefully.”

The Bench rejected the Union of India’s submission that the Magistrate should have discretion to issue notice either before or after examining the complainant and witnesses. It clarified that where the statute exempts such examination, notice may be issued without insisting upon sworn statements. Where examination is required, however, notice must follow the recording of those statements.

The Bench added: “If the statute itself exempts the complainant or witnesses to be examined before cognizance is taken, the notice to the accused must necessarily be without insisting on the same, however, if the statement of the complainant and the witnesses present is to be recorded, the meaningful notice to the accused will be after such statements have been recorded. In fact, if notice to the accused is issued even prior to recording of such statements, it may either make such right restricted or redundant for the accused, or may lead to the accused interfering with the recording of the statement of the complainant and the witnesses, which right has still not been conferred by the Statue on the accused.”

The Court further relied on Parvinder Singh v. Directorate of Enforcement (2026), in which the Supreme Court held that the first proviso to Section 223(1) was substantive and mandatory, formed part of the accused’s right to a fair trial under Article 21 of the Constitution and rendered cognizance taken without compliance void from inception.

The Court rejected the contention that placing the hearing before cognizance would merge the stage of taking cognizance with the stage of issuing process.

The Bench clarified that even after hearing the accused and deciding to take cognizance, the Magistrate must separately determine whether to postpone the issuance of process and conduct an inquiry under Section 225, dismiss the complaint under Section 226 or issue process under Section 227 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Bench underscored: “Once, after hearing the accused, the Magistrate decides to take cognizance of the offence, the Magistrate is still to decide whether the case demands postponement of issuance of the process and ordering an inquiry under Section 225 of the BNSS, dismiss the complaint under Section 226 of the BNSS, or issue process to the accused under Section 227 of the BNSS. Therefore, there is no merger in the two distinct stages of the processing of the complaint by the Magistrate.”

The Court added that the accused’s right at the pre-cognizance stage was limited. The accused could demonstrate that, even if the complaint and the sworn statements were accepted at face value, they did not disclose an offence.

Conclusion

The Delhi High Court answered the reference by holding that examination of the complainant and witnesses on oath, unless exempted by statute, and hearing the accused are both stages preceding formal cognizance under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

It further held that notice must be issued after the sworn examination and after the Magistrate forms a prima facie opinion that the complaint should not be dismissed under Section 226, but before the formal decision to take cognizance.

After answering the referred questions, the Division Bench directed that the petitions be placed before the appropriate Roster Bench for further proceedings.

Cause Title: Dr Rita Bakshi v. Seema Bajaj & Anr.; Anita Rani Mehra & Anr. v. Neena Kapoor (Neutral Citation: 2026:DHC:8460-DB)

Appearances

Petitioners: Senior Advocate Pavan Narang; Advocates Rakesh Malhotra, Bharat Malhotra, Kushal Malhotra, Abhijeet Singh, Gayatri Bhatia, Sidhartha Das, Himanshu Sethi, Tushar Sharma, Siddharth Gautam, Kamal Nayan and Himanshu Goel

Respondents: Advocates Raajan Chawla, Pooja Joshi, Smiti Verma, Pranay Chitale, Udayvir Rana and Aditya Dutta; APP Aman Usman; Advocate Manvendra Yadav; CGSC Amit Tiwari; Advocates Ayushi Srivastava, Arpan Narwal, Kushagra Malik and Ujjwal Tyagi

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