Pre-Cognizance Hearing Mandatory Where Cognizance Taken After BNSS

Source: Supreme Court

Why in News? 

A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran, in Umar & Anr. v. State of Uttar Pradesh & Anr. (2026), held that where a Magistrate applies judicial mind and finds a prima facie case only after the BNSS came into force, cognizance is deemed to have been taken on that date. The accused must therefore be given an opportunity of being heard before cognizance, as required by the first proviso to Section 223(1) of the BNSS, even though the complaint was filed under the CrPC regime. 

What was the Background of Umar & Anr. v. State of Uttar Pradesh & Anr. (2026) Case? 

• An FIR was registered on 7th June 2022, and the police filed a closure report on 6th August 2022. 
• The complainant filed a protest petition on 14th October 2022, and on 29th November 2022 the court ordered further investigation under Section 173(8) CrPC (now Section 193(9) BNSS). 
• A second closure report was filed on 14th February 2023, followed by a second protest petition on 28th April 2023. 
• The complaint was taken on board on 11th October 2023. The court found an inquiry justified and directed the complainant to be produced for evidence under Section 200 CrPC. 
• On 6th March 2024, the statements of the complainant (PW1), her husband (PW2) and a doctor (PW3) were recorded. 
• No further orders were passed for almost two years. On 3rd June 2026, the Special Judge (SC/ST Prevention of Atrocities Act), Azamgarh, found a prima facie case and issued process against the accused. 
• The accused approached the Supreme Court, contending that cognizance was taken on 3rd June 2026, after the BNSS came into force on 1st July 2024, without the pre-cognizance hearing mandated by Section 223. 
• The complainant argued that cognizance had been taken before the BNSS, when the complaint was accepted to the files of the court, and that no formal order was required to show that cognizance had been taken. 

What were the Court's Observations? 

On the Issue Framed: 

• The Court framed the question as whether cognizance on the protest petition filed under Section 200 CrPC was taken before or after the BNSS came into force with effect from 1st July 2024. 

On Reliance on CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd.: 

• The Court noted the principle that cognizance is taken of the offence and not the offender. 
• Once the court is satisfied that the case discloses an offence and decides to proceed further, it must be held to have taken cognizance. 
• Cognizance is a word of indefinite import, and its meaning depends upon the statutory requirement. 

On Reliance on Zunaid v. State of Uttar Pradesh: 

• The Court recorded that on receiving a police report under Section 173 CrPC, the Magistrate has three options:  
  • to drop the proceedings; 
  • to take cognizance and issue process, without being bound by the conclusion of the police; or 
  • to take cognizance under Section 190(1)(a) CrPC (now Section 210(1)(a) BNSS) on the original complaint and examine the complainant and witnesses on oath under Section 200 CrPC (now Section 223 BNSS). 

On Reliance on Parvinder Singh v. Directorate of Enforcement: 

• The Court noted the holding that under the BNSS, taking cognizance is nothing but an application of judicial mind, and until such judicial mind is exercised, an inquiry cannot be deemed to have commenced. 
• It observed that this was the position even under the CrPC, but the BNSS adds a further requirement of hearing the accused before judicial mind is exercised. 

On When Cognizance was Actually Taken: 

• The Court held that the answer depends on the manner in which the court proceeded with the police report or the protest complaint. 
• Examining the earlier order on the protest petition, the Court found that the Magistrate had only considered an inquiry justified and called for the complainant's evidence. Cognizance was therefore not taken at that stage. 
• It was only in the order dated 3rd June 2026 that judicial mind was applied and a prima facie case was found. Cognizance was thus deemed to have been taken on that date, after the BNSS had come into force. 
• Consequently, the court was required to summon the accused and hear him before taking cognizance. 

Conclusion: 

• The Court set aside the order dated 3rd June 2026 to the extent that it found a prima facie case and took cognizance, and confined it to a summons simpliciter. 
• The accused were directed to appear before the trial court within one month, after which the matter would be heard and appropriate orders passed. 
• The appeal was allowed, with the Court clarifying that its decision had no bearing on the merits of the case.

What is Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023? 

About: 

• Section 223 of the BNSS deals with the examination of the complainant by a Magistrate taking cognizance of an offence on a complaint. 
• It falls under Chapter XVI of the BNSS (Complaints to Magistrates). 
• It corresponds to Section 200 of the CrPC, but introduces a new safeguard: the accused must be given an opportunity of being heard before cognizance is taken on a complaint. 

The Provision: 

Section 223 states: 

Sub-section (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." 

Sub-section (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." 

Corresponding Provision under the CrPC (Section 200): 

• "A Magistrate 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, when the complaint is made in writing, the Magistrate need not examine the complainant and 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 192: 
• Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them." 

Key Changes Introduced by Section 223 BNSS: 

• Pre-Cognizance Hearing of the Accused (First Proviso to Sub-section 1): 
• Under the CrPC, the accused had no right to be heard before cognizance was taken on a complaint. 
• Under the BNSS, no cognizance can be taken on a complaint without first giving the accused an opportunity of being heard. 

Wording of Sub-section (1): 

• Section 200 CrPC referred to a Magistrate "taking cognizance", while Section 223 BNSS refers to a Magistrate "having jurisdiction while taking cognizance". 

Additional Safeguard for Public Servants (Sub-section 2): 

• This is a new provision with no counterpart in Section 200 CrPC. 
• Before taking cognizance on a complaint against a public servant for acts done in the course of official duties, the Magistrate must give the public servant an opportunity to explain the circumstances of the alleged incident, and must receive a report on the facts from the public servant's superior officer. 

Exceptions to Examination of the Complainant (Second and Third Provisos to Sub-section 1): 

• These are carried over from the CrPC. Examination of the complainant and witnesses is not required where the written complaint is made by a public servant acting in official capacity or by a Court, or where the case is made over to another Magistrate under Section 212 BNSS (earlier Section 192 CrPC).