The Delhi High Court, in a significant judgment, has ruled that under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, a magistrate cannot take cognizance of a complaint without first issuing notice to the accused. This marks a crucial departure from the earlier procedure under the Code of Criminal Procedure (CrPC), 1973, where the accused had no right to be heard before cognizance was taken.
The judgment, delivered by Justice Neena Bansal Krishna, reinforces the procedural safeguards introduced under the BNSS, ensuring fairness in criminal proceedings.
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Key Differences Between CrPC and BNSS
1. Earlier Position Under CrPC
Under Section 200 of the CrPC, a magistrate could examine the complainant and witnesses without issuing notice to the accused. The accused had no role until after cognizance was taken and summons were issued.
"Under the erstwhile Section 200 CrPC and Section 202 CrPC, it was clear that till the stage of cognizance, the accused had no role." – Delhi High Court
2. New Safeguard Under BNSS
The BNSS introduces a procedural safeguard through the first proviso to Section 223(1), which states:
"No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
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This ensures that the accused gets a chance to present their case before cognizance is taken, preventing frivolous complaints and unnecessary harassment.
Court’s Observations
1. Pre-Summoning Evidence Must Precede Cognizance
The court clarified that recording pre-summoning evidence (examining the complainant and witnesses) is mandatory before cognizance. However, this does not mean the accused has a right to cross-examine witnesses at this stage.
"The words 'while taking cognizance of an offence' clearly indicate that at the time of taking cognizance, first the witnesses need to be examined on oath." – Delhi High Court
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2. Purpose of Pre-Cognizance Examination
The magistrate must verify the authenticity of the complaint before issuing notice to the accused. This step ensures:
- Prima facie case exists.
- No frivolous complaints proceed further.
- Judicial discretion is exercised fairly.
3. No Right to Intervene at Complaint Dismissal Stage
If a magistrate dismisses a complaint under Section 203 BNSS (earlier Section 203 CrPC), the accused cannot intervene at this stage. Only if the magistrate proceeds to issue summons does the accused get a right to be heard.
Case Background
The judgment came in a petition filed by Brand Protectors India Pvt. Ltd., challenging an order that set aside a magistrate’s decision to take cognizance without hearing the accused. The company argued that pre-summoning evidence should not have been recorded without prior notice.
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However, the High Court upheld the sessions court’s decision, stating:
"The law has been rightly interpreted by the learned ASJ. The impugned order does not suffer from any infirmity."
Title: BRAND PROTECTORS INDIA PVT. LTD v. ANIL KUMAR