Hearing Accused Mandatory Before Cognizance, But Pre-Summoning Evidence Can Be Recorded Before Notice Under S.223 BNSS: Delhi High Court - 2025-09-15

Delhi High Court Clarifies Procedure Under New BNSS: Accused Must Be Heard Before Cognizance, But Not Before Pre-Summoning Evidence

New Delhi: In a significant ruling interpreting the new criminal laws, the Delhi High Court has held that while an accused must be given an opportunity of being heard before a Magistrate takes cognizance of a complaint under the Bharatiya Nagarik Suraksha Sanhita, 2023 (B.N.S.S.), this right does not extend to the stage of recording pre-summoning evidence.

Justice Neena Bansal Krishna, while dismissing a petition filed by Brand Protectors India Pvt. Ltd., affirmed that the examination of a complainant and their witnesses is a preliminary step to help the Magistrate decide if there is a prima facie case to proceed, and this can be done before issuing notice to the accused.

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Background of the Case

The matter originated from a defamation complaint filed by Anil Kumar against Brand Protectors India Pvt. Ltd. The Metropolitan Magistrate (MM) took cognizance of the complaint and scheduled it for the recording of pre-summoning evidence.

Brand Protectors challenged this order, arguing that under the newly enacted Section 223 of the B.N.S.S., cognizance could not be taken without first giving them an opportunity to be heard. An Additional Sessions Judge (ASJ) partially agreed, setting aside the cognizance order but upholding the MM's decision to record pre-summoning evidence.

Unsatisfied, Brand Protectors approached the High Court, challenging the second part of the ASJ's order. They contended that even recording pre-summoning evidence is a judicial proceeding that cannot be conducted without first taking cognizance, which in turn requires hearing the accused.

Petitioner's Arguments

The counsel for Brand Protectors India Pvt. Ltd. argued that:

- Taking cognizance is a mandatory prerequisite for conducting pre-summoning evidence.

- The new proviso to Section 223(1) of the B.N.S.S. creates a right for the accused to be heard before cognizance is taken.

- Therefore, no pre-summoning evidence can be recorded without first hearing the accused, as one stage is contingent on the other.

High Court's Analysis: A Staged Approach Under S.223 BNSS

Justice Krishna meticulously analyzed the procedural shift from the old Code of Criminal Procedure, 1973 (CrPC) to the new B.N.S.S. The court highlighted that Section 223 B.N.S.S. (corresponding to Section 200 CrPC) introduces a crucial procedural safeguard for the accused.

The judgment explained the process in a clear, sequential manner:

1. Stage 1: Examination of Complainant: Upon receiving a complaint, the Magistrate first examines the complainant and any witnesses on oath. The court emphasized that the phrase "while taking cognizance" in Section 223 indicates that this examination is a step taken towards taking cognizance.

2. Stage 2: Hearing the Accused: After recording these initial statements and satisfying themselves that a prima facie case exists, the Magistrate must then issue notice to the accused. This is mandated by the new proviso to Section 223(1), which states, "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."

3. Stage 3: Taking Cognizance: Only after hearing the accused can the Magistrate apply their judicial mind to the facts and decide whether to formally take cognizance of the offence and proceed with issuing summons.

The court observed that the purpose of recording preliminary evidence is to protect the accused from frivolous and meritless complaints. As the court noted:

"The objective is evident that the recording of the statement of the Complainant/ witnesses is to ensure the authenticity of the allegations made in the Complaint. It is only when the Magistrate is fully satisfied with the averments made in the Complaint and that it discloses a cognizable offence that the second stage of taking cognizance would arise."

The High Court cited a similar interpretation by the Karnataka High Court, reinforcing that the recording of statements precedes the notice to the accused.

Final Decision and Implications

The court concluded that the ASJ had correctly interpreted the law and that the impugned order suffered from no infirmity. Justice Krishna held that the procedural framework under Section 223 B.N.S.S. involves recording the complainant's evidence first, followed by an opportunity for the accused to be heard, and only then can the Magistrate take cognizance.

This judgment provides crucial clarity on the application of Section 223 of the B.N.S.S., establishing a two-step process before cognizance is taken in complaint cases. It balances the need to filter out frivolous litigation with the new procedural right granted to an accused to be heard at the pre-cognizance stage.