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IN THE HIGH COURT OF DELHI AT NEW DELHI
NEENA BANSAL KRISHNA, J.
Brand Protectors India Pvt. Ltd. – Petitioner
Versus
Anil Kumar, S/o. Late Mr. Shamlal Abrol – Respondent
Crl. M.C. 1495 of 2025, Crl. M.A. 6762 of 2025 (stay)
Decided On : 25-07-2025
Certainly. Based on the provided legal document, here are the key points:
The law now explicitly mandates that the accused must be heard before cognizance of an offence is taken. This procedural safeguard is introduced through the proviso to Section 223 of the relevant Act, emphasizing the importance of giving the accused an opportunity of being heard prior to the initiation of formal proceedings (!) (!) .
The process of recording pre-summoning evidence is a judicial proceeding aimed at ascertaining whether there is sufficient prima facie evidence to justify summoning the accused. This recording must be conducted only after the court has taken cognizance and the accused has been given a prior opportunity of hearing (!) (!) .
The stage of taking cognizance involves the application of the court’s mind to the complaint and the evidence presented, which can only occur after the accused has been given an opportunity to be heard. This procedural step is crucial to prevent unnecessary harassment and frivolous proceedings (!) (!) .
The examination of the complainant and witnesses upon oath is a mandatory step at the time of taking cognizance, and this process is designed to ensure the authenticity of the allegations before proceeding further (!) (!) .
Recording of pre-summoning evidence is a part of the process to determine whether there are sufficient grounds to issue process against the accused. This process cannot be conducted without prior notice to the accused, reinforcing the right to be heard at the pre-cognizance stage (!) (!) .
The legal framework distinguishes between the stages of examining witnesses, taking cognizance, and issuing process. The examination of witnesses on oath occurs before or during the process of taking cognizance, but only after the court has applied its mind to the complaint and evidence (!) (!) .
The procedural safeguards introduced in the relevant Act reflect a deliberate legislative intent to protect the rights of the accused, ensuring that no cognizance is taken without giving the accused an opportunity to be heard (!) (!) .
The procedural steps and safeguards are designed to prevent frivolous or meritless complaints from leading to unnecessary harassment of the accused, and to ensure that there is a prima facie case before issuing process (!) (!) (!) .
The court has confirmed that the order setting aside cognizance for failure to give prior notice to the accused is correct, and the recording of pre-summoning evidence without such notice is invalid. The order to hear the accused before taking cognizance is upheld as legally correct (!) (!) .
Overall, the law emphasizes that the process of taking cognizance, recording pre-summoning evidence, and issuing process must be conducted in a manner that ensures the accused’s right to be heard at each relevant stage, safeguarding procedural fairness (!) (!) (!) .
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JUDGMENT :
NEENA BANSAL KRISHNA, J.
1. Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'B.N.S.S.') read with Article 227 of the Constitution of India, 1950, has been filed on behalf of the Petitioner, Brand Protectors India Pvt. Ltd. for partially setting aside the impugned Judgment and Order dated 25.01.2025 in CR No. 251/2024, whereby the learned ASJ, Delhi has set-aside the Order of learned Metropolitan Magistrate taking cognizance without issuing a Notice to the accused persons with the direction that the accused persons be heard before taking cognizance on the Complaint.
2. Briefly stated, the Complaint Case bearing CT No. 980/2024 titled Mr. Anil Kumar Proprietor of M/s Shiva Export House vs. Brand Protectors India Pvt. Ltd. under Section 222 of the B.N.S.S. for defamation was filed. The learned Metropolitan Magistrate vide Order dated 19.07.2024, took cognizance and directed the matter to be listed for pre-summoning evidence on 09.08.2024.
3. This Order of Summoning was challenged by the Petitioner (Respondent/Accused in the Complaint), on the grounds that the cognizance of the offence has been taken without hearing the Petitioner, in violation of Section 223 of B.N.S.S.
4. The Petitioner preferred her Revision Petition bearing CR No. 251/2024 before the learned ASJ, who vide his impugned Order dated 25.01.2025 observed that the cognizance could not have been taken without giving prior Notice to the Petitioner and thereby set-aside the Order of cognizance with the directions that the Petitioner be heard before taking cognizance. However, the second part of the Order regarding recording of pre-summoning evidence and consequent examination of Complainant on 05.12.2024, was held to be not in violation of Section 223 of B.N.S.S. was held to be valid and was not set-aside.
5. The second part of the Order is challenged on the ground that in the case of Raj Kumar vs. State of NCT of Delhi , 2013 SCC OnLine Del 774 , C. Ilavarasu vs. State , 2019 SCC OnLine Mad 1119 and Kishori Mohan Guchhait vs. Apurba Baran Mondal , 1979 SCC OnLine Cal 98 it has been held that without taking cognizance, there can be no direction for conducting pre-summoning evidence.
6. Learned counsel has further argued that Section 223(1) of B.N.S.S., is para materia to Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') and merely because Section 223 of B.N.S.S. states “a Magistrate having jurisdiction while taking cognizance of offence” cannot be interpreted to imply that pre-summoning evidence has to be recorded before issuing the Notice to the accused for taking cognizance. This phrase neither affects the operation of the proviso in any manner nor does it warrant creation of new jurisprudence for taking cognizance. Furthermore, the pre-summoning evidence as envisaged under CrPC, was not to be carried out under Section 200 but under Section 202(2) CrPC, which is manifestly clear from the language used in Section 200 and Section 202 CrPC. Section 200 CrPC uses a word 'examine' whereas the expression used in Section 202(2) CrPC is 'taking evidence', of witnesses on oath. This leads to inescapable conclusion that the concept of pre-summoning evidence is rooted in Section 202(2) Cr.P.C (now 225(2) of B.N.S.S) and not in Section 200 CrPC (now Section 223(1) of B.N.S.S).
7. It is emphasised that the enquiry under Section 200(2) CrPC, cannot be undertaken without first taking cognizance of the offence. Moreover, the expression used in Section 225(2) of B.N.S.S. is para-materia with Section 202(2) CrPC, which is 'taking cognizance' and not 'while taking cognizance.' Therefore, the Appellate Court erred in treating the examination of Complainant as envisaged under Section 223(1) of B.N.S.S.as conducting pre-summoning evidence under Section 225(2) of B.NS.S.
8. Reliance has been placed on the case of Ghanshyam Kumar Shukala vs. State of U.P., 2006 SCC OnLine All 44 wherein the All
The requirement for the accused to be heard before taking cognizance of an offence is now mandatory under Section 223 of the B.N.S.S., marking a critical procedural safeguard.
The court emphasized that under Section 223(1) of BNSS, a Magistrate must examine the complainant and provide the accused an opportunity to be heard before taking cognizance of an offence.
The court clarified that under Section 223(1) of BNSS, a Magistrate must examine the complainant and witnesses before taking cognizance and issuing notice to the accused.
Recording complainant's sworn statement under Section 223 BNSS does not amount to taking cognizance; it is pre-cognizance material collection requiring accused hearing.
The court established that under Section 223 of the BNSS, a Magistrate must examine the complainant on oath before issuing notice to the accused, ensuring procedural fairness.
The issuance of notice by a Magistrate without recording complainant statements contravenes statutory procedures, rendering the notice invalid.
Cognizance of offences – Notice is to be issued to accused only after examination of Complainant and present witnesses.
The court established that a magistrate must provide an opportunity for the accused to be heard before taking cognizance of criminal complaints, ensuring adherence to procedural justice under Section....
The court held that failure to provide an opportunity for hearing before summoning accused is a violation of procedural rights and Article 21 of the Constitution.
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