Accused Must Be Heard Before Cognizance is Taken on a Complaint under S.223 BNSS: Calcutta High Court Lays Down Procedure - 2025-09-14

Calcutta High Court Clarifies 'Pre-Cognizance Hearing' Under New BNSS, Sets Aside Order for Denying Accused Opportunity to Be Heard

Jalpaiguri, West Bengal – In a significant judgment clarifying the procedural mandate of the new Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Calcutta High Court has ruled that a Magistrate must provide an accused person an opportunity to be heard before taking cognizance of an offence on a complaint. The court quashed a trial court's order for failing to comply with this mandatory requirement under the proviso to Section 223(1) of the BNSS.

The single-judge bench of Dr. Justice Ajoy Kumar Mukherjee , sitting at the Jalpaiguri Circuit Bench, laid down a clear, step-by-step procedure for Magistrates to follow upon receiving a criminal complaint, emphasizing that the "pre-cognizance hearing" is an offence-centric inquiry, not an offender-centric one.

Case Background

The case, Kaberi Dey & Ors. vs Sourav Bhattacharjee , arose from a criminal revision petition challenging orders passed by the Chief Judicial Magistrate (CJM), Jalpaiguri. The CJM had taken cognizance of a complaint filed against the petitioners under various sections of the Bharatiya Nyaya Sanhita, 2023 (BNS) on September 13, 2024. Subsequently, the complainant was examined, and process was issued to the petitioners.

The petitioners argued that the entire process was illegal as they were not given an opportunity to be heard before the cognizance was taken, a right explicitly granted by the proviso to Section 223(1) of the BNSS.

Arguments of the Parties

For the Petitioners: Senior Advocate Mr. Ayan Bhattacharjee contended that the CJM's order was "de hors the edict of law." He argued that the failure to provide a pre-cognizance hearing to the accused rendered the subsequent orders for taking cognizance and issuing process "non-est in the eye of law."

For the Opposite Party (Complainant): Mr. Sabyasachi Roy Chowdhury argued for a different interpretation of the procedural sequence. He submitted that to avoid delay and procedural complexity, the hearing for the accused should occur after the Magistrate examines the complainant and their witnesses, but before cognizance is "finally taken." He cautioned that providing a hearing at the very outset could be misused by accused persons to delay proceedings, contrary to the legislative intent of the new criminal laws.

Court's Analysis and Interpretation of Section 223 BNSS

Dr. Justice Ajoy Kumar Mukherjee undertook a detailed analysis of Section 223 BNSS in conjunction with established principles of criminal procedure. The court's pivotal finding was that the sequence of events under the BNSS does not alter the fundamental meaning of "taking cognizance," which is the initial application of judicial mind to the facts alleged.

The judgment emphasized that the legislature, while introducing the new proviso for a pre-cognizance hearing, kept the surrounding procedural sections (Sections 223 to 227 of BNSS) largely pari materia (on the same subject) with the corresponding sections of the erstwhile Code of Criminal Procedure, 1973.

"Had it been the intention of the legislature to bring in any change sequentially... necessary changes would have been brought by the legislature in BNSS," the court observed.

The court held that the process must unfold as follows: a complaint is filed, the accused is heard on limited grounds, and then the Magistrate decides whether to take cognizance. Only after taking cognizance does the Magistrate proceed to examine the complainant and witnesses under oath.

Scope of the Pre-Cognizance Hearing

The court clarified the limited scope of the hearing afforded to the accused at this nascent stage. It is not a mini-trial, and the accused cannot present their defence or documentary evidence. The inquiry is "offence-centric and not offender-centric."

The accused's submissions are confined to preliminary objections such as: - Jurisdictional errors. - The complaint being barred by limitation. - Lack of mandatory sanction. - The court's lack of competence (e.g., existence of a special court). - Inherent or technical defects in the complaint. - Demonstrating that the allegations are so outrageous or absurd that they do not constitute any semblance of an offence.

The Final Verdict and Procedural Blueprint

Finding that the trial court had acted in direct contravention of the statutory mandate, the High Court set aside the impugned orders taking cognizance and issuing process. The matter was remanded to the court below with a clear directive to follow a specific procedure:

• Issue Notice: Upon receiving a complaint, the court must issue a notice to the proposed accused.
• Service of Notice: The notice can be served via registered post or electronic modes. It must specify that its purpose is to provide a pre-cognizance hearing.
• Conduct Hearing: Once the accused appears (in person or through a lawyer), the pre-cognizance hearing on the limited grounds must be conducted.
• No Further Participation: If the Magistrate decides to take cognizance despite the hearing, the accused will have no further role in the proceedings until the stage of issuance of process under Section 227 of the BNSS.

The court directed the Registrar General to circulate the judgment to all District Judges in the state to ensure uniform compliance by Magistrates, thereby standardizing the application of this crucial new provision in the BNSS.