Under BNSS, accused must be heard before cognizance in private complaints: Delhi High Court

The Delhi High Court has delivered a landmark ruling on the procedural sequence under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), holding that a magistrate can formally take cognizance of an offence in a private complaint only after examining the complainant and witnesses on oath and providing the proposed accused an opportunity of being heard. The division bench of Justice Navin Chawla and Justice Ravinder Dudeja answered two key questions referred by a single judge, settling conflicting interpretations that had arisen across several high courts.

A Procedural Blueprint for Private Complaints

The case originated from two petitions — one filed by Dr. Rita Bakshi and another by Anita Rani Mehra and an associate — challenging magistrates’ orders that directed notice to them under Section 223 of the BNSS before the recording of pre-summoning evidence. The referring single judge noted a divergence in views: some high courts had held that notice to the accused must follow the examination of the complainant, while others suggested it could be issued at the very threshold. The division bench was tasked with clarifying the precise stage at which cognizance is taken and when the accused is entitled to a hearing.

The Disputed Stage: Before or After Examination?

The petitioners, supported by senior counsel Pavan Narang and advocate Rakesh Malhotra, argued that the newly inserted proviso to Section 223(1) is a substantive safeguard intended to protect against false implication. They contended that a conjoint reading of Sections 210, 223, 225, 226, and 227 of the BNSS unequivocally demonstrates that examination of the complainant and witnesses must precede any notice to the accused. The Union of India, represented by Amit Tiwari, submitted that while the hearing must be meaningful, the precise timing could be left to the magistrate’s discretion. The respondents, including Seema Bajaj and Neena Kapoor, argued that the proviso does not alter the settled position that cognizance precedes examination, and that an accused has no right to participate at the pre-summoning stage.

Harmonising Text with Purpose

The court analysed the critical textual differences between Section 200 of the erstwhile Code of Criminal Procedure and Section 223 of the BNSS. It highlighted two vital changes: the insertion of the words “having jurisdiction while” and the first proviso mandating a hearing. The bench observed that the word “while” is temporal and signifies that the examination of the complainant and witnesses forms part of the process of taking cognizance, not a step that follows it. The proviso, it said, addresses a longstanding mischief where criminal process could be set in motion without any participation by the accused.

“The legislature clearly wanted to divert from the earlier position under the CrPC where the accused did not have a right to be heard at that stage, and faced a prolonged trial which was bound to fail,” the court underscored.

A Right Made Meaningful

Rejecting the argument that magistrates should have discretion to issue notice either before or after examination, the court held that a meaningful hearing requires the accused to have access to the complaint and the sworn statements of the complainant and witnesses. Issuing notice at the very outset, before the complainant’s version is recorded, would render the safeguard an empty formality and could allow the accused to interfere with the recording of evidence.

“The accused can now show to the Magistrate that even taking the complaint and the statements of the complainant and the witnesses at their face value, the complaint does not disclose an offence; this is the limited right now conferred on the accused, but it must be fully granted,” the judgment stated.

The Final Verdict

The division bench answered the referred questions as follows: First, under Section 223(1) of the BNSS, the examination of the complainant and witnesses on oath (unless exempted by statute) and hearing the accused are steps prior to taking cognizance. Second, the magistrate must issue notice to the accused after such examination and after forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226, but before formally taking cognizance. The petitions were directed to be listed before the roster bench on 28 October 2026, subject to the orders of the Chief Justice.

The ruling provides a clear procedural framework for magistrates handling private complaints under the new criminal procedure law, ensuring that the accused’s right to be heard is both timely and effective.