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Meaning of cognizance in Section 223 BNSS - The term cognizance refers to the judicial act of a Magistrate applying their mind to initiate proceedings based on a complaint. It involves the Magistrate examining the complainant and witnesses before formally taking notice of the offence. The addition of a proviso in Section 223(1) BNSS mandates that, prior to taking cognizance, the Magistrate must issue a notice to the accused and provide an opportunity of hearing. This procedural requirement is a significant change from the previous procedure under Section 200 of Cr.P.C. ["Bhupendra Choudhury, S/o. Lt. Bholanath Choudhury vs Arun Choudhury - Gauhati"], ["Kaberi Dey vs Sourav Bhattacharjee - Calcutta"], ["SRI BHUPENDRA CHOUDHURY AND ANR vs SRI ADHIR DAS - Gauhati"], ["Suhyb P.J S/o. Jamaludheen vs State Of Kerala - Kerala"], ["G.Ganesan vs The Deputy Director, Directorate of Enforcement, Ministry of Finance, Chennai - Madras"].
Legal interpretation of cognizance - The term is understood to mean the Magistrate’s awareness or formal recognition of the offence after examining the complaint and witnesses. It does not mean the actual initiation of proceedings but the stage where the Magistrate becomes aware of the case and applies judicial mind, which is now preceded by a mandatory procedural step under the new BNSS provisions. The courts emphasize that cognizance involves the Magistrate becoming aware of the offence, and the procedural safeguards introduced in Section 223 ensure this process is carried out with fairness, including notice and hearing for the accused ["Bhupendra Choudhury, S/o. Lt. Bholanath Choudhury vs Arun Choudhury - Gauhati"], ["SRI BHUPENDRA CHOUDHURY AND ANR vs SRI ADHIR DAS - Gauhati"], ["Suhyb P.J S/o. Jamaludheen vs State Of Kerala - Kerala"].
Procedural requirements under Section 223 BNSS - The section replaces the earlier Section 200 of Cr.P.C. and introduces a proviso that requires the Magistrate to issue a notice to the accused and allow an opportunity of hearing before taking cognizance. Failure to comply with this procedural step renders the cognizance order invalid. The procedural change aims to safeguard the rights of the accused and ensure transparency in the initiation of criminal proceedings ["Kaberi Dey vs Sourav Bhattacharjee - Calcutta"], ["G.Ganesan vs The Deputy Director, Directorate of Enforcement, Ministry of Finance, Chennai - Madras"], ["Suby Antony S/o. Late P. D. Antony VS Judicial First-Class Magistrate - Kerala"].
Significance of the proviso to Section 223(1) - The proviso explicitly mandates that before proceeding to take cognizance, the Magistrate must give the accused an opportunity to be heard, which was not part of the earlier Section 200 procedure. This procedural safeguard is intended to prevent premature or unwarranted cognizance and ensures that the accused's rights are protected at the earliest stage ["Bhupendra Choudhury, S/o. Lt. Bholanath Choudhury vs Arun Choudhury - Gauhati"], ["SRI BHUPENDRA CHOUDHURY AND ANR vs SRI ADHIR DAS - Gauhati"], ["Suby Antony S/o. Late P. D. Antony VS Judicial First-Class Magistrate - Kerala"].
Impact of non-compliance - Courts have held that ignoring the procedural mandates, especially the issuance of notice and opportunity of hearing under the proviso, invalidates the cognizance order. This has led to cases being remitted for reconsideration or orders being set aside due to procedural lapses ["Kaberi Dey vs Sourav Bhattacharjee - Calcutta"], ["G.Ganesan vs The Deputy Director, Directorate of Enforcement, Ministry of Finance, Chennai - Madras"], ["Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576"].
Conclusion:In the context of Section 223 BNSS, the term cognizance signifies the Magistrate’s formal recognition of an offence after examining the complaint and witnesses, but it is now explicitly preceded by a mandatory procedural step involving notice and hearing to the accused, as mandated by the proviso to Section 223(1). Non-compliance with these procedural safeguards renders the cognizance order invalid, emphasizing the importance of adhering to the procedural provisions introduced in the BNSS ["Bhupendra Choudhury, S/o. Lt. Bholanath Choudhury vs Arun Choudhury - Gauhati"].
In the evolving landscape of Indian criminal procedure, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces key changes to ensure fairness. One common query from legal practitioners and accused persons alike is: What is the legal meaning of the term heard used in Section 223 BNSS? This provision, replacing Section 200 of the CrPC, mandates specific procedural steps in private complaints, emphasizing principles of natural justice. Understanding heard is crucial to avoid procedural lapses that could vitiate entire proceedings.
This article breaks down the term's interpretation, judicial views, practical applications, and exceptions, drawing from authoritative sources. Note: This is general information and not specific legal advice; consult a qualified lawyer for your case.
Section 223 BNSS governs the examination of complainants in private complaint cases. It requires the Magistrate to examine the complainant and witnesses on oath upon receiving a complaint. A pivotal proviso states that no cognizance of an offence shall be taken without giving the accused an opportunity of being heard.
This shift from the CrPC underscores a commitment to audi alteram partem—no one should be condemned unheard. The term heard typically refers to the accused being given a chance to respond before the Magistrate takes cognizance, issues notice, or initiates formal proceedings. Kushal Kumar Agarwal VS Directorate of Enforcement - 2025 5 Supreme 639
The phrase heard signifies a procedural safeguard where the accused must be afforded an opportunity to be heard prior to the Magistrate taking cognizance of the complaint. It is not a mere formality but involves examining the accused after the complaint is filed and before issuing notices. This ensures fairness and prevents premature actions. Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576
As clarified in judicial interpretations, The notice to the accused cannot be issued prior to the examination or hearing of the complainant and witnesses on oath, as mandated by law. Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576 This step aligns with natural justice principles, protecting against arbitrary proceedings. Shaurabh Kumar Tripathi VS Vidhi Rawal - 2025 0 Supreme(SC) 873
In essence:- Procedural Step: Post-complaint filing, pre-notice issuance.- Purpose: Allows the accused to present their side, potentially averting unwarranted trials.- Scope: Includes examination on oath, ensuring substantive input from the accused. Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576
Courts have consistently upheld the mandatory nature of this hearing, quashing orders that bypass it. In a Prevention of Money-Laundering Act (PMLA) case, the court ruled: Taking cognizance of the offences without affording the accused an opportunity of hearing vitiates the order of cognizance and consequential proceedings. Tutu Ghosh vs Enforcement Directorate - 2025 Supreme(Cal) 603 The denial was held to violate Article 21 rights, treating PMLA complaints as private complaints under Section 223 BNSS. Tutu Ghosh vs Enforcement Directorate - 2025 Supreme(Cal) 603
Another ruling emphasized: No cognizance of an offence shall be taken by Magistrate without giving accused opportunity of being heard. The court set aside an order for non-compliance with the proviso to Section 223(1), directing the accused's appearance for hearing. Kushal Kumar Agarwal VS Directorate of Enforcement - 2025 5 Supreme 639
In a defamation case, the Magistrate erred by issuing notice before examining the complainant on oath. The court held: The proper procedure under Section 223 mandates that the complainant must be examined on oath before any notice is issued to the accused, ensuring the accused's right to be heard. Basanagouda R. Patil (Yatnal) S/O Ramanagouda Patil VS Shivananda S. Patil S/O Sidramappa Patil - 2024 Supreme(Kar) 300
Similarly, in quashing proceedings: The court emphasized the necessity for a Magistrate to provide the accused an opportunity to be heard before taking cognizance of complaints as mandated by the BNSS. Manoj Kumar Dugar vs The State of Bihar - 2025 Supreme(Online)(Pat) 1971 These cases illustrate that mechanical orders without hearing are unsustainable. Basanagouda R. Patil (Yatnal) S/O Ramanagouda Patil VS Shivananda S. Patil S/O Sidramappa Patil - 2024 Supreme(Kar) 300Manoj Kumar Dugar vs The State of Bihar - 2025 Supreme(Online)(Pat) 1971
In practice, upon filing a complaint under Section 223 BNSS:1. Magistrate examines complainant and witnesses on oath.2. Accused is summoned for hearing before cognizance.3. Only post-hearing can notices issue or proceedings advance. Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576
Failure invites challenges via revisions or quashings under Section 528 BNSS. For instance, in PMLA matters, courts remit cases for fresh hearings, underscoring: Impugned order set aside only on the ground of non-compliance with proviso to subsection (1) of Section 223 of BNSS. Kushal Kumar Agarwal VS Directorate of Enforcement - 2025 5 Supreme 639
Legal practitioners should advise clients to flag non-compliance early, as it may lead to vitiation of cognizance and downstream actions. Tutu Ghosh vs Enforcement Directorate - 2025 Supreme(Cal) 603
While generally mandatory, exceptions exist:- Complaints by public servants in official capacity or courts may skip witness examination pre-cognizance. Saji John VS Assistant Director, Directorate of Enforcement, Government of India Cochin Zonal Office - Crimes (2025)- Police reports under Section 210 BNSS might alter sequences, but the hearing proviso typically applies to private complaints. Manoj Kumar Dugar vs The State of Bihar - 2025 Supreme(Online)(Pat) 1971
However, courts stress strict adherence in most scenarios to uphold fairness. Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576
The heard requirement embodies constitutional safeguards under Article 21, preventing miscarriages. As one court noted: The denial of prior hearing, as guaranteed under the BNSS, constitutes a violation of fundamental rights and affects all subsequent proceedings. Tutu Ghosh vs Enforcement Directorate - 2025 Supreme(Cal) 603
Magistrates and lawyers must prioritize this to avoid reversals, as seen in multiple rulings where proceedings were quashed for procedural infirmities. Basanagouda R. Patil (Yatnal) S/O Ramanagouda Patil VS Shivananda S. Patil S/O Sidramappa Patil - 2024 Supreme(Kar) 300Kushal Kumar Agarwal VS Directorate of Enforcement - 2025 5 Supreme 639
In conclusion, the term heard in Section 223 BNSS is a bulwark of procedural justice, ensuring the accused's voice before formal steps. By integrating this understanding, stakeholders can foster equitable proceedings under the new regime. Stay informed on BNSS updates, and seek professional counsel for case-specific guidance.
References:- Basanagouda R. Patil S/o Ramanagouda Patil vs Shivananda S. Patil S/o Sidramappa Patil - 2025 0 Supreme(Kar) 576, Shaurabh Kumar Tripathi VS Vidhi Rawal - 2025 0 Supreme(SC) 873, Saji John VS Assistant Director, Directorate of Enforcement, Government of India Cochin Zonal Office - Crimes (2025), Tutu Ghosh vs Enforcement Directorate - 2025 Supreme(Cal) 603, Manoj Kumar Dugar vs The State of Bihar - 2025 Supreme(Online)(Pat) 1971, Basanagouda R. Patil (Yatnal) S/O Ramanagouda Patil VS Shivananda S. Patil S/O Sidramappa Patil - 2024 Supreme(Kar) 300, Kushal Kumar Agarwal VS Directorate of Enforcement - 2025 5 Supreme 639
#BNSSSection223, #HeardRight, #CriminalJustice
223(1) of BNSS, 2023 (Paras 25, 29). ... 223, a notice to the accused must follow the examination of the complainants and witnesses as per legal provisions. ... 28) ... ... (B) Cognizance of Offence - Refers to judicial mind applied by Magistrate to a complaint - Under Section ... Since the term “cognizance” has been used in both the aforesaid Sections, it may be worthwhile to address the issue as to what actually means by the term ‘Cognizance’. ... In Section #HL_....
(A) Bharatiya Nyaya Sanhita, 2023 - Sections 115(1), 115(2), 118(1), 117(2), 126(1), 329(3), 351(2), 351(3), and Section 223(1) - ... 223(1) of BNSS? ... 223(1) - The court found the cognizance order invalid as it was made disregarding statutory provisions. ... Though it has been argued that section 223 (1) of BNSS is in pari materia to section 200 Cr.P.C., however the distinction is that in section 200 Cr.P.C. the words u....
Since the term “cognizance” has been used in both the aforesaid Sections,it may be worthwhile to address the issue as to what actually means by the term ‘Cognizance’. ... Meaning thereby, before the Magistrate takes cognizance of the matter i.e. prior to the Magistrate applying his judicial mind in the whole issue, the proviso to Sub-section (1) of Section 223 BNSS, 2023 calls for issuance of a notice to the accused. ... InSection 223#HL_....
BNSS are much more expansive than Section 197(1) of the Code (Section 218(1) of BNSS). ... The next contention is regarding the failure to follow the procedure prescribed in sub-section (2) to Section 223 of BNSS.
... ... Issues: Whether violation of the first proviso to Section 223, BNSS, vitiates the cognizance order; whether complaints under ... 223 BNSS provisions are applicable. ... ) Prevention of Money-Laundering Act, 2002 - Sections 3, 4, and 70 - Bhartiya Nagarik Suraksha Sanhita, 2023 - First Proviso to Section ... 223(1), BNSS. ... Such procedure, in the present case, is Section 210, read with Section 223, of the BNSS#H....
to Section 210 BNSS. ... Before Section 223 of the BNSS, in private complaint cases, the accused had no role until process was issued under Section 204 of the CrPC. ... Sections 223 and 224(1) BNSS reads as follows: “223. ... Among the most consequential changes is the replacement of Section 200 of the CrPC with Section 223 of the BNSS, signifying a new dim....
BNSS , without following the procedure under Section 223 . ... However, he took into consideration Section 223 (1) of BNSS and directed the Magistrate to proceed as per that Section. ... The learned Judge had laid down as to how a court should deal with Section 223 (1) of the BNSS . ... The accused challenged the summoning of the order on the ground of violation of Section 223 of....
223 without considering the necessary sworn statements. ... 223, warranting the case to be remitted back to the Magistrate for reconsideration following established guidelines. ... adherence - The Magistrate failed to properly adhere to the procedural requirements, leading to erroneous issuance of notice under Section ... Filing of the private complaint is dealt with under Section 223 of the BNSS , which was Section 200 of Cr.P.C., it reads as follows: “223#....
Procedure - Defamation - BNSS Section 223 - The court interpreted Section 223 of the BNSS, emphasizing the ... Ratio Decidendi: The court held that the proper procedure under Section 223 mandates that the complainant ... 223 of the BNSS. ... Filing of the private complaint is dealt with under Section 223 of the BNSS, which was Section 200 of Cr.P.C., it reads as follows: “223. .....
to subsection (1) of Section 223 of BNSS. ... Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 223 [Section 200 of Code of Criminal Procedure, 1973] ... 223 of the BNSS. ... The Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "the BNSS") came into force on July 1, 2024. Section 223 of the BNSS reads thus: “223. Examination of complainant. ... Section 223 of ....
20. We may also note that under Sub-section (1) of Section 23 of the DV Act, 2005, a power has been conferred on the learned Magistrate to pass interim and ex-parte orders. 21. Therefore, an application under Section 12 of the DV Act, 2005, cannot be equated with a complaint within the meaning of Section 200 of the CrPC (Section 223 of the BNSS). As provided in Sub-section (4) of Section 12, read with Sub-section (1) of Section 13, the normal rule is that a notice of hearing must be issued on the application. The scheme of Section 12 is completely different from Section 200 of the ....
The following observation in the said judgment is contextually quotable: "The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently. It is so understood by this Court in State of A.P. v. Cheemalapati Ganeswara Rao. The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223(1) [sic 2351)]. It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also [corr....
It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also (corresponding to Section 235(1) of the old Code). The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223(1). It is so understood by this Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., [1964] 3 SCR, 297. The following observation in the said judgment is contextually quotable:
It is so understood by this Court in State of A.P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850 : (1964) 3 SCR 297. The following observation in the said judgment is contextually quotable: The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223 [sic 235(1)]. It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also [corresponding to Section 235(1) of the old Code],
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