A pre-cognizance hearing under the proviso to Section 223 of the BNSS is a beneficial safeguard for the accused and is procedurally distinct from the power to postpone process under Section 225, which applies only after cognizance is taken.

MANDEEP PANNU J. (Oral)

1. The present petition has been filed under Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 for quashing of the impugned order dated 11.03.2026 passed by the learned Chief Judicial Magistrate, Jhajjar in complaint No. COMI-16-2026 dated 02.03.2026 filed by the complainant/respondent under Sections 499 and 500 of the Indian Penal Code (corresponding to Section 356 of the Bharatiya Nyaya Sanhita, 2023) and sections 190 and 200 of Criminal Procedure Code (corresponding to section 210, 223 BNSS).

2. It is apparent from the record that the complainant/respondent instituted the aforesaid complaint alleging commission of offence of defamation.

The learned Trial Court recorded the preliminary evidence wherein two witnesses namely Parambir Singh and Ajay Yadav were examined as CW1 and CW2 respectively and thereafter the complainant closed the preliminary evidence. After considering the material on record, the learned Magistrate, instead of taking immediate cognizance, proceeded to issue notice to the proposed accused in compliance with the proviso to Section 223 of the Bharatiya Nagrik Suraksha Sanhita, 2023 , thereby affording an opportunity of hearing to the accused before taking cognizance of the offence.

3. Learned senior counsel for the petitioner/accused has contended that the action of the learned Trial Court in issuing such notice to the proposed accused is not in consonance with law and that the procedure adopted is erroneous. It is argued that the Magistrate ought to have followed the procedure contemplated under law before proceeding further and that issuance of such notice causes prejudice to the petitioner. Learned senior counsel has further contended that the very issuance of notice under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 was itself unwarranted in the facts of the present case, and that the complaint ought to have been dismissed outrightly at the threshold. It is submitted that the material placed before the Magistrate, even at the initial stage, did not disclose sufficient grounds for proceeding, and therefore there was no occasion to invoke the proviso to Section 223 so as to call upon the petitioner/accused to appear and be heard. Learned senior counsel further argues that the Magistrate, instead of dismissing the complaint under the applicable provisions at the pre-cognizance stage, has unnecessarily prolonged the proceedings by issuing notice to the accused, thereby subjecting him to avoidable litigation. It is further contended that once the Magistrate chose to issue notice and hear the accused under Section 223 , the statutory scheme effectively stands exhausted at that stage, and any subsequent recourse to Section 225 for postponement of process would amount to a duplication of scrutiny. According to the petitioner, the legislative intent behind introducing a pre-cognizance hearing is to ensure that complaints lacking merit are weeded out at the earliest possible stage, and if despite such material being insufficient, notice is still issued, it results in a situation where the Magistrate keeps the proceedings alive without justification. It is thus urged that the complaint deserved outright dismissal at the inception itself, and that the course adopted by t