Introduction
Cognizance refers to the formal acknowledgment by a magistrate of an alleged offense, marking the start of judicial proceedings. A magistrate can take cognizance in three ways: upon receiving a complaint outlining the facts of the offense, upon receiving a police report detailing such facts, or through suo moto cognizance, based on the magistrate’s own knowledge or information from others, excluding police officers. A private complaint is typically filed with the Judicial Magistrate of First Class (JMFC) by an individual seeking a remedy for a cognizable offense when the police, including the Superintendent of Police, refuse to register a First Information Report (FIR).
With the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replacing the Code of Criminal Procedure, 1973 (CrPC), a fundamental change has been introduced in the cognizance process for private complaints.
Under the newly introduced Section 223(1) BNSS, a magistrate cannot take cognizance of an offense without first granting the accused an opportunity to be heard. This marks a sharp departure from the earlier practice framework within Section 200 of the CrPC, where cognizance could be taken solely based on the complainant’s statement and supporting materials.
As the legal landscape in India undergoes a seismic shift, the introduction of pre-cognizance hearings under Section 223 of the BNSS sparks a critical debate—does it fortify justice by curbing frivolous litigation, or does it entangle the judiciary in yet another procedural maze?
The CrPC Era: A One-Sided Process?
Under the CrPC, magistrates relied solely on the complainant’s testimony and supporting evidence when determining whether to take cognizance of an offense. The accused had no role in contesting the complaint at this pre-cognizance stage. If the magistrate found a prima facie case, summons or warrants were issued under Section 204 CrPC, and only then was the accused brought into the proceedings.
This system had the advantage of swift case initiation, but it also enabled widespread misuse of criminal proceedings. The threat of prosecution was frequently wielded as a weapon in business rivalries, family disputes, and commercial conflicts. Defendants often found themselves ensnared in litigation based on baseless allegations, with no immediate recourse. Their only option was to challenge the cognizance order after summons had been issued—by which time reputational and financial harm had already been inflicted.
Section 223(1) BNSS: A New Judicial Safeguard
“No magistrate shall take cognizance of an offence without giving the accused an opportunity of being heard.”
This provision fundamentally alters the dynamics of criminal complaints by shifting the accused’s participation from the post-cognizance stage to the pre-cognizance stage. It ensures that the accused is notified and has an opportunity to contest the complaint before any further legal proceedings commence.
The intent behind this change is clear: to filter out meritless cases at an early stage. By hearing both sides before taking cognizance, magistrates can prevent unwarranted legal entanglements. Ideally, this should reduce the burden on the judiciary, sparing courts from hearing cases that lack substantive merit.
However, this shift is not without its challenges. The introduction of an additional procedural step may contribute to delays in an already overburdened judicial system. It also opens the door for tactical misuse, where accused persons might exploit the pre-cognizance hearing to delay proceedings through procedural objections and adjournment requests. Moreover, a key inconsistency arises: this safeguard applies only to private complaints, while cases initiated through police reports remain unaffected. The asymmetry in procedural rights between these two categories raises questions about the fairness of the reform.
Judicial Conundrum
The Karnataka High Court, in Sri Basanagouda R Patil (Yatnal) v. Sri Shivananda S Patil, has emphatically interpreted Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) as enshrining a substantive right for the accused to be heard prior to the Magistrate assuming cognizance. The Court underscored that such an opportunity cannot be relegated to a mere procedural formality. Consequently, any notice issued to the accused under the proviso to Section 223(1) must be accompanied by the complaint, the sworn statement of the complainant, and any depositions of witnesses, thereby ensuring that the accused is adequately equipped to present their defense before cognizance is taken.
A parallel stance was adopted by the Kerala High Court in Suby Antony v. R1 & Ors. (2025). Relying on a textualist interpretation of the proviso to Section 223(1), the Court held that upon the filing of a complaint, the Magistrate must first examine the complainant and witnesses under oath. Thereafter, should the Magistrate decide to assume cognizance of the offense, the accused must be afforded an opportunity to be heard. However, the Court introduced an important qualification—while the proviso to Section 223(1) renders such a hearing imperative, Section 226 of the BNSS does not recognize objections raised by the accused at this preliminary juncture as a tenable ground for the outright dismissal of the complaint.
This interpretative trajectory, however, represents a conspicuous deviation from well-entrenched Supreme Court precedent. The apex court, in R.R. Chari v. State of U.P. (1951) and State of Orissa v. Debendra Nath Padhi (2005), has consistently held that the act of taking cognizance is a judicial function premised on the perusal of the complaint and accompanying materials under Section 200 of the Cr.P.C. and the succeeding provisions of Chapter XV. These pronouncements reinforce the principle that an accused does not possess the right to be heard at the pre-cognizance stage.
By mandating an adversarial hearing prior to the assumption of cognizance, Section 223(1) BNSS appears to unsettle this established legal position, introducing a paradigm shift in the architecture of criminal procedure. Whether this statutory innovation harmonizes with the prevailing framework or necessitates a jurisprudential recalibration remains a question of profound significance. Ultimately, the Supreme Court will be tasked with reconciling this provision within the overarching doctrinal scheme of criminal law and adjudicating the contours of an accused’s procedural entitlements at the threshold stage of criminal proceedings.
Striking a Balance: Refining the Pre-Cognizance Hearing
While the intent of Section 223(1) BNSS is laudable, its implementation must strike a balance between protecting the accused and ensuring judicial efficiency.
A middle ground could involve limiting the scope of the pre-cognizance hearing to two key objections:
- Jurisdictional Challenges – The accused should be permitted to contest whether the magistrate has territorial, subject-matter, or pecuniary jurisdiction over the case. If jurisdiction is lacking, the complaint should be dismissed outright.
- Prima Facie Deficiencies – The accused should have the right to challenge whether the complaint contains the essential ingredients of the alleged offense. If it does not, the magistrate should have the discretion to reject the case before issuing summons.
To prevent unnecessary delays, the accused should not be permitted to:
- Introduce extensive documentary evidence
- Cross-examine the complainant or witnesses
- Raise detailed factual defenses (which should be reserved for trial)
By limiting the scope of pre-cognizance hearings, Section 223(1) BNSS can serve as a safeguard without becoming a procedural bottleneck.
Implications for Business and Corporate Litigation
Section 223(1) of the BNSS introduces a vital safeguard for the corporate sector in India, curbing the rampant misuse of criminal complaints in business disputes. Under the previous legal framework, company executives could be summoned without prior intimation, exposing them to coercive litigation, reputational damage, and financial distress. In many cases, commercial disagreements—such as contractual disputes or delayed payments—were deliberately escalated into criminal allegations to exert undue pressure on businesses.
Consider a situation where a technology firm is compelled to sever ties with a vendor due to repeated non-compliance with agreed quality standards. Instead of pursuing legitimate civil remedies such as arbitration or litigation, the disgruntled vendor weaponizes the legal system by filing a baseless criminal complaint, falsely accusing the company’s CEO of fraud. Under the previous legal framework, the CEO had no recourse to challenge these allegations before a summons was issued, forcing them into a protracted and costly legal battle. Beyond the financial burden, the mere existence of criminal charges could severely tarnish the company’s reputation, undermine investor confidence, and disrupt business operations. Confronted with such high stakes, many executives—despite their innocence—found themselves coerced into settlements, not as an admission of guilt, but as a pragmatic step to protect their company from reputational and operational fallout.
The introduction of Section 223(1) BNSS significantly alters this dynamic by mandating that magistrates issue a notice to the accused before taking cognizance of the case. This ensures that the defendant has an opportunity to present their version of events before a judicial decision is made. By filtering out frivolous complaints at an early stage, this reform upholds the integrity of the legal system and prevents criminal law from being weaponized as a negotiation tactic in corporate disputes. Ultimately, it fosters a more balanced and business-friendly legal environment in India.
Verdictum: A Step in the Right Direction, with Room for Refinement
The introduction of a pre-cognizance hearing under Section 223(1) BNSS is a progressive reform that enhances procedural fairness and shields accused persons—particularly corporate professionals—from frivolous litigation. However, for this provision to be truly effective, its scope must be carefully defined. A structured and time-bound approach will be essential to prevent delays while preserving its protective intent.
Ultimately, the fate of this provision hinges on how the judiciary calibrates the delicate balance between safeguarding rights and ensuring procedural efficiency—whether it stands as a beacon of justice or devolves into a bureaucratic quagmire remains to be seen.