The court referred to a Larger Bench the interpretation of the statutory proviso requiring a pre-cognizance hearing for an accused, specifically questioning whether ‘taking cognizance’ occurs before or after the examination of the complainant and witnesses under the current procedural code.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 18.12.2025 Judgment pronounced on: 18.03.2026 Judgment uploaded on: 24.03.2026 + CRL.M.C. 2551/2025 & CRL.M.A. 11417/2025 DR RITA BAKSHI .....Petitioner Through: Mr. Rakesh Malhotra, Mr.

Bharat Malhotra and Ms.

Smritika Kesri, Advocates versus SEEMA BAJAJ & ANR. .....Respondents Through: Mr. Raajan Chawla, Ms.

Pallavi Yadav and Ms.

Lavanya Chadha, Advocates Mr. Manoj Pant, APP for the State along with SI Amisha Kumari CORAM:

HON’BLE DR. JUSTICE SWARANA KANTA SHARMA

J U D G M E N T

DR. SWARANA KANTA SHARMA, J

1. The petitioner has approached this Court seeking quashing of the order dated 21.01.2025 [hereafter ‗impugned order‘] passed by the learned Judicial Magistrate, First Class-03, South District, Saket Courts, Delhi [hereafter ‗Magistrate‘] in CT Case No. 2771/2024 titled ‘Dr. Seema Bajaj v. M/s Embryo Health Pvt. Ltd. & Anr.’.

INTRODUCTION

2. The issue that arises for consideration in the present case pertains to the interpretation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [hereafter ‗BNSS‘], and in particular, the scope and effect of the newly introduced first proviso to Section 223(1) of BNSS, which mandates that no cognizance of an offence on a complaint shall be taken by the Magistrate without affording the accused, an opportunity of being heard.

3. In the present case, a complaint was filed by the respondent- complainant against eight accused persons, including the present petitioner (accused no. 2), alleging commission of offences punishable under Sections 420/120B/34/35/37 of the Indian Penal Code, 1860 [hereafter ‗IPC‘]. The matter was briefly heard on 11.12.2024 and was thereafter listed for recording of pre-summoning evidence on 25.04.2025. Subsequently, the complainant moved an application before the learned Magistrate praying that, in terms of Section 223 of BNSS, notice be issued to the accused persons prior to taking cognizance and recording the statement of the complainant.

4. Pursuant thereto, the learned Magistrate passed the following order dated 21.01.2025:

―Submissions of learned counsel for the complainant heard.

Learned counsel for the complainant has argued that no prejudice would be caused to the proposed accused persons if they are issued notice to appear in person before pre-

summoning evidence is recorded.

Considering that the present complaint was filed on 11.12.2024 under the new provisions of BNSS, let notice be issued to the proposed accused persons to appear in person on the next date of hearing, on filing of process fee within seven days, returnable on 25.04.2025.

Dasti notice be given to the complainant to expedite service. Affidavit of service be filed by the complainant on the next date of hearing.‖

5. The aforesaid order directing issuance of notice to the accused has been challenged by the petitioner by way of the present petition.

SUBMISSIONS BEFORE THE COURT

6. In essence, the petitioner contends that since the first proviso to Section 223(1) of the BNSS mandates that the accused must be heard before cognizance is taken, such opportunity of hearing can arise only after the Magistrate has perused the complaint and recorded the statement of the complainant and witnesses, if any, under Section 223(1) of BNSS [corresponding to Section 200 (1) of the Cr.P.C.]. It is argued that it is only upon such examination that the Magistrate is in a position to apply judicial mind to the material on record, and thereafter issue notice to the accused for hearing on the question of whether cognizance ought to be taken. Thus, according to the learned counsel for the petitioner, the issuance of notice to the accused must follow the recording of pre-summoning evidence i.e. statement of the complainant and witnesses, if any, though both stages would still fall prior to formal taking of cognizance. In support of this submission, reliance has been placed on decisions of the High Courts of Karnataka, Allahabad and Kerala, as well as judgme