The court established that under the BNSS, a Magistrate must examine the complainant and witnesses on oath before issuing notice to the accused, ensuring the accused's right to be heard post-cognizance.

ORDER

The introduction of three new criminal laws; the Bharatiya Nyaya Sanhita (BNS for short), Bharatiya Nagarik Suraksha Sanhita ( BNSS for short) and Bharatiya Sakshya Adhiniyam (BSA for short), has given rise to many interesting and intriguing legal issues. One such conundrum, coming up for consideration in this case, is whether Section 223 (1) of the envisages issuance of notice to the accused named in the complaint before taking cognisance of the offence.

2. Adv.Shaju Francis appearing for the petitioner submitted that the court below grossly erred in issuing notice to the accused in the complaint filed by the petitioner, even before examining the petitioner and his witnesses on oath. It is the submission of the learned counsel that the illegality is perpetuated by the learned Magistrate issuing notice to the accused, in spite of the oral objection raised initially and the written objection filed thereafter. According to the counsel, even on plain reading of Section 223 (1), it is apparent that the accused need be issued with notice only at the stage of taking cognisance. It is submitted that the legal position as to when notice under (1) is to be issued, laid down by the High Court of Karnataka in Basanagouda R Patil v. Shivananda S Patil [2024 SCC OnLine Kar 96], though brought to the notice of the learned Magistrate, was not adverted to.

3. The contentions call for close scrutiny of Section 223 (1) of BNSS , since in Section 200 of Cr.P.C, which is the corresponding provision in the Code, the proviso to (1) was absent. Presumably, the purpose behind the proviso is to provide an opportunity to the Magistrate to assimilate the correct facts, for deciding whether or not to take cognizance of the offence. For ease of reference, is extracted hereunder;

“223. Examination of complainant.

(1)A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:

Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint;

or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.

(2)A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless- (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received. “

4. As the term cognizance is not defined in BNSS , it will be profitable to refer the following erudite exposition of the Supreme Court in S.K.Sinha, Chief Enforcement Officer v. Videocon International Ltd. and Others . [(2008) 2 SCC 492] .

“19. The expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have bee