A Procedural Crossroads: Delhi High Court Seeks Clarification on Pre-Cognizance Hearings Under BNSS

In a significant move toward clarifying the procedural landscape of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the High Court of Delhi has referred a critical question of law to a Larger Bench. The case, Dr. Rita Bakshi v. Seema Bajaj & Anr. , centers on the interpretation of the newly introduced first proviso to Section 223(1) of the BNSS, which mandates that a Magistrate must afford an accused an opportunity to be heard before taking cognizance of an offence.

The Conflict of Interpretation

At the heart of the dispute lies a technical but vital procedural sequencing issue. Section 223(1) of the BNSS requires the Magistrate to examine the complainant and witnesses upon oath before taking cognizance. However, the proviso stipulates that no cognizance can be taken without hearing the accused.

The petitioner argued that notice to the accused should be issued only after the Magistrate has perused the complaint and recorded pre-summoning evidence—a stage that aligns with traditional understandings of judicial application of mind. Conversely, citing protections against frivolous complaints, arguments were raised that inserting the accused into the process before the "pre-summoning evidence" stage might be necessary to adhere to the safeguard introduced by the new Code.

Arguments from the Bar

The petitioner contended that the legislative intent behind the proviso is to prevent baseless litigation, but that the hearing of the accused must logically occur only after the Magistrate has initialled the evidence. They relied on prior decisions from the High Courts of Karnataka, Allahabad, and Kerala, which suggest that the notice stage follows the recording of statements.

The respondent, however, pushed back, arguing that under settled Supreme Court precedents—such as Jamuna Singh v. Bhadai Shah —the very act of recording complainant testimony is a post-cognizance exercise. Therefore, if the law requires a hearing before cognizance, that hearing must necessarily take place before the examination of the complainant commences.

Judicial Analysis: Bridging Past and Future

In her order, Dr. Justice Swarana Kanta Sharma noted that while Coordinate Benches of the Delhi High Court had previously opined that notice follows the recording of evidence, the introduction of the word "while" in Section 223(1) of the BNSS creates a potential conflict with established Supreme Court jurisprudence regarding the definition of "taking cognizance."

The Court highlighted that "taking cognizance" is not a mere ritual but the formal application of a judicial mind to move forward with a case. By referring the matter to a Larger Bench, the Court aims to reconcile these disparate interpretations and provide a definitive roadmap for Magistrates across the jurisdiction.

Key Observations

• "The first proviso to Section 223(1) of the BNSS… marks a substantive procedural safeguard that did not exist under the earlier regime."
• "Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down."
• "Judicial discipline envisages that a Coordinate Bench should follow the decision of an earlier Coordinate Bench, and if it does not agree... the matter may be referred only to a larger Bench."
• "The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused."

Decision and Implications

Pending the decision of the Larger Bench, the High Court directed that the proceedings in the present case could continue, as the complainant’s sworn statement had already been recorded, thus mitigating prejudice to either party.

This referral is a landmark moment for legal practitioners, as it signals a cautious, rigorous approach to interpreting the BNSS. By setting a Larger Bench to resolve this ambiguity, the Delhi High Court ensures that the shift from the Code of Criminal Procedure to the BNSS is accompanied by clear, consistent, and constitutionally aligned procedural standards, ultimately protecting the rights of both complainants and the accused against procedural uncertainty.