Section 223 BNSS Creates a New Safeguard — No Cognizance Without Hearing the Accused — Delhi High Court Explains New Prior Notice Requirement Before Cognizance

“Section 223(1) now gives the accused a voice at the pre-cognizance stage — a safeguard missing in the CrPC”, In a judgment that cements one of the most significant procedural changes under the Bharatiya Nagarik Suraksha Sanhita, 2023, the Delhi High Court has held that while a Magistrate cannot take cognizance of an offence without first giving the accused an opportunity to be heard, the recording of pre-summoning evidence before such notice remains valid.

Justice Neena Bansal Krishna, deciding Brand Protectors India Pvt. Ltd. v. Anil Kumar, dismissed the petitioner’s attempt to strike down pre-summoning evidence recorded by a Metropolitan Magistrate after the cognizance order was set aside for lack of notice.

“A Marked Departure From the Earlier Regime”

The Court noted that under the old Code of Criminal Procedure, 1973, “till the stage of cognizance, the accused had no role” and the Magistrate could issue summons without prior hearing. But the BNSS “marks a change as a procedural safeguard has been incorporated… which mandates that no cognizance of an offence shall be taken without giving the accused an opportunity of being heard.”

This, Justice Krishna said, was “a significant departure that did not exist under the earlier regime” and was introduced “despite the Legislature being obviously aware of the subsequent stages of a proceeding and criminal trial where a right of hearing is again given to the accused.”

“Recording Statements Protects the Accused”

The petitioner argued that even pre-summoning evidence should not be recorded without prior notice. The Court rejected this, holding that the BNSS preserves the Magistrate’s power to verify a complaint before deciding whether to take cognizance.

“The purpose of recording statements prior to taking cognizance,” Justice Krishna wrote, “is only to ascertain if any prima facie case is disclosed in the complaint and thereby enable taking of cognizance in appropriate cases and avoid unnecessary harassment of the accused.”

This process, she emphasised, “is for the protection of the accused from being summoned on frivolous complaints” and “does not permit the accused person to intervene in the course of enquiry by the Magistrate” at this stage.

Cognizance Comes Later — With the Accused Heard

Explaining the sequence, the Court observed that at the pre-cognizance stage “the recording of the statement of the complainant and witnesses is to ensure the authenticity of the allegations made in the complaint.” Only after this scrutiny is the Magistrate “fully satisfied… that the complaint prima facie discloses a cognizable offence” does the question of cognizance arise.

And under the BNSS, at that point, the Magistrate “shall give the accused an opportunity of being heard” before deciding to proceed. “The proviso,” the Court said, “is not an empty formality… it is a real safeguard.”

Petition Dismissed — ASJ’s Order Upheld

Concluding, Justice Krishna found “no infirmity” in the ASJ’s interpretation: “Section 223 BNSS has reiterated the procedural framework of Section 200 CrPC… but has introduced a significant departure that after the complainant/witnesses as the Court may desire have been recorded, an opportunity of being heard be given to the accused before cognizance is taken.”

The petition was dismissed, the pre-summoning evidence allowed to stand, and the case will now proceed with the accused given a hearing before any future cognizance order.

Date of Decision: 25 July 2025