Justice Neena Bansal Krishna, Delhi High Court
Section 223 BNSS Requires Magistrate To Hear Accused Before Taking Cognizance: Delhi High Court
|A company challenged the setting aside of a Magistrate’s cognizance order, which the sessions court held was invalid under BNSS.
The Delhi High Court has held that a Magistrate cannot take cognizance of an offence on a complaint without first giving the accused an opportunity to be heard, marking a significant procedural shift from the existing provisions under the CrPC.
A Bench of Justice Neena Bansal Krishna held, “it may be concluded that Section 223 BNSS has reiterated the procedural framework of Section 200 Cr.P.C. with regard to examination of the Complainant and the witnesses, but has introduced significant departure that after the Complainant/ witnesses as the Court may desire has been recorded, an opportunity of being heard be given to the accused before cognizance is taken.”
Advocate Shubham Dayma appeared for the Petitioner.
The Court contrasted this with the CrPC, under which an accused person has no procedural role before cognizance is taken. In the CrPC framework, the Magistrate examines the complaint and, if satisfied, takes cognizance of the offence and only then issues summons to the accused under Section 204.
However, under the new BNSS framework, the accused is granted a procedural safeguard through the requirement of being heard before the Magistrate can take cognizance. This change introduces a more balanced approach and allows the accused to present their side earlier in the process.
The Court held, “Therefore, the ld. ASJ has rightly held that the taking of Cognizance and issuing the summons to the Accused/ Petitioner without prior Notice was bad in the light of proviso to Section 223 (1) Cr.P.C and thereby set it aside.”
A petition was filed by a company that challenged the setting aside of a Metropolitan Magistrate’s order. The trial court had taken cognizance of the offence without issuing a notice to the accused, which the sessions court later ruled was improper under the BNSS and directed that the accused must be given a chance to be heard before cognizance is taken.
Petitioners argued that pre-summoning evidence could not have been recorded by the Magistrate without giving prior notice to the accused and allowing them an opportunity to cross-examine the witnesses. However, the Court rejected this contention, holding that the sessions court had correctly interpreted the law and that the order setting aside the Magistrate's cognizance did not suffer from any legal infirmity.
The Court further clarified that the dismissal of a complaint before process is issued does not give the accused the right to participate under the CrPC. But under the BNSS, this is no longer the case, and the accused must be involved before the Court even takes cognizance, thereby enhancing procedural fairness.
Cause Title: Brand Protectors India Pvt. Ltd. v. Anil Kumar, [2025:DHC:6044]