Source: Kerela High Court 

Why in News? 

A bench of Justice VG Arun held that under Section 223 of Bharatiya Nagarik Suraksha Sanhita the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence/s, opportunity of hearing should be afforded to the accused.               

• The Kerela High Court held this in the case of Suby Antony v. R1 (2025). 

What was the Background of Suby Antony v. R1 Case?  

• The petitioner in this case submitted that the Court erred in issuing notice to the accused named in the complaint even before examining the petitioner and witnesses on oath. 
• It is their case that the illegality is perpetuated by the Magistrate issuing notice to the accused in spite of oral objection raised initially and the written objection filed thereafter.  
• It was the case of the petitioner that the legal position was laid down by the Karnataka High Court in Basanagouda R Patil v. Shivananda S Patil (2024). 
• The conundrum that the Court had to address in this case was whether Section 223 (1) of BNSS envisages issuance of notice to the accused named in the complaint before taking cognizance of the offence. 

What were the Court’s Observations?  

• The Court made the observation that Section 200 of Criminal Procedure Code, 1973 (CrPC) is corresponding to Section 223 (1) of BNSS. 
• A new proviso to Section 223 of BNSS is added which provides that no cognizance of the offence shall be taken without giving the accused opportunity of being heard. 
• Under the CrPC, the accused had no locus standi even at the stage where the Magistrate decides whether or not to issue process to the accused. 
• Further, it was observed that in spite of the proviso to Section 223(1) making it mandatory to provide opportunity of hearing to the accused before taking cognizance, Section 226 does not reckon the accused's objection at the stage of taking cognizance as a relevant factor for dismissing the complaint. 
• The Court held that the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence/s, opportunity of hearing should be afforded to the accused. 
• The Court thus held that the notice could not have been issued to the prospective accused before taking cognizance. 

 What is Section 223 of BNSS? 

• Section 223 (1) provides for the following: 
  • Examination of Complainant & Witnesses: 
    • A Magistrate taking cognizance of an offence on a complaint must examine the complainant and witnesses under oath. 
    • This examination is recorded in writing and signed by all parties, including the Magistrate. 
  • Opportunity for the Accused: 
    • Cognizance cannot be taken without giving the accused an opportunity to be heard. 
  • Exceptions to Examination Requirement: 
    • The Magistrate need not examine the complainant and witnesses if: 
      • The complaint is made by a public servant in an official capacity or by a court. 
      • The case is transferred to another Magistrate under Section 212. 
  • No Re-examination on Case Transfer: 
    • If a case is transferred after initial examination, the new Magistrate need not re-examine the complainant and witnesses. 
• Section 223 (2) further provides for the following: 
  • Cognizance of a complaint against a public servant for acts done in official capacity requires: 
    • The public servant is to be given an opportunity to explain the situation. 
    • A factual report from a superior officer regarding the incident. 

 What is the Difference Between Section 200 of CrPC and Section 223 of BNSS?