Isabella Mariam

The High Court of Delhi Single Bench of Justice Neena Bansal Krishna held that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates that no Magistrate can take cognizance of an offence without first providing the accused an opportunity of being heard. While upholding the setting aside of a Metropolitan Magistrate’s order that had taken cognizance without issuing notice to the accused, the Court dismissed the petitioner’s challenge to the recording of pre-summoning evidence, clarifying that such recording can validly precede cognizance and does not violate the statutory safeguards introduced by BNSS.

The matter arose from a petition under Section 528 of the BNSS read with Article 227 of the Constitution, filed by Brand Protectors India Pvt. Ltd. The petitioner sought partial setting aside of the impugned judgment dated 25.01.2025 in CR No. 251/2024. The complaint under Section 222 of the BNSS for defamation was originally filed by Anil Kumar, proprietor of M/s Shiva Export House. The Metropolitan Magistrate had, by an order dated 19.07.2024, taken cognizance and listed the matter for pre-summoning evidence.

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This cognizance order was challenged by the petitioner on the grounds that it was passed in violation of Section 223 of the BNSS, which requires prior notice to the accused before cognizance can be taken. The learned Additional Sessions Judge (ASJ) accepted this contention and set aside the cognizance order, directing that the accused be given an opportunity of hearing before cognizance was taken. However, the ASJ upheld the validity of the pre-summoning evidence already recorded, leading to the present petition seeking its nullification.

The petitioner argued that Section 223(1) of BNSS is para materia to Section 200 CrPC and the phrase "while taking cognizance" does not warrant a deviation from established principles. It was contended that pre-summoning evidence is not rooted in Section 223(1) but in Section 225(2) BNSS, corresponding to Section 202(2) CrPC, and that such evidence cannot be recorded without first taking cognizance. The petitioner submitted that since cognizance had been taken without hearing the accused, even the recording of pre-summoning evidence was vitiated.

Reliance was placed on various precedents, including Raj Kumar v. State of NCT of Delhi, C. Ilavarasu v. State, Kishori Mohan Guchhait v. Apurba Baran Mondal, and Ghanshyam Kumar Shukala v. State of U.P. to argue that the examination of the complainant must follow cognizance and not precede it.

The petitioner submitted that judicial proceedings such as recording pre-summoning evidence must follow proper cognizance and that failure to provide an opportunity to the accused under Section 223 rendered the entire proceeding invalid. Further references were made to State of West Bengal v. Mohd. Khalid and Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, affirming that cognizance requires application of judicial mind and is not a mere procedural formality.

The High Court acknowledged the procedural shift introduced by BNSS, especially through the first proviso to Section 223(1), and held that the learned ASJ had rightly set aside the cognizance order for violating this mandate. However, the Court examined whether the recording of pre-summoning evidence before issuance of notice to the accused was itself invalid under the new scheme.

"The core question which has arisen for consideration is: whether the pre-summoning evidence as well as Cognizance can be taken only after giving Notice to the Accused."

"From the comprehensive reading of these two Sections, it becomes evident that though under Section 200 Cr.P.C (now S. 223 BNSS) at the stage of pre-cognizance, no Notice was required to be served upon the accused, this aspect has undergone a change in Section 223 BNSS..."

"The cognizance involves application of mind to the given facts to ascertain whether the Accused needs to be summoned. The purpose of recording statements prior to taking cognizance, is only to ascertain if any prima facie case is disclosed in the Complaint..."

"This reinforces that it is prior to taking Cognizance on the Complaint that the witnesses are required to be examined. The objective is evident that the recording of the statement of the Complainant/ witnesses is to ensure the authenticity of the allegations..."

"Therefore, Complainant in terms of proviso to sub-section to S.223 of BNSS, shall append the copy of the Complaint, the small statements of the Complainant and the witnesses, if any, for the accused to appear and submit his case before the cognizance is taken."

"The proviso indicates that an accused should have an opportunity of being heard, which would not be an empty formality."

"The Magistrate may hold an enquiry under Section 202 himself or direct the same to be made by a Police Officer... The dismissal of the Complaint under Section 203 is without doubt, a pre-issuance of process stage."

"When a Complaint is filed, the Magistrate on examination of the complainant and the witnesses, does not want to issue the process. Thus, if it is found that no sufficient ground is made out of proceeding, the Complaint can be dismissed forthwith..."

"The stage of Cognizance comes only after the recording of the statement and only thereafter, the issue arises of giving a Notice to the Accused..."

"Section 223 BNSS has reiterated the procedural framework of Section 200 Cr.P.C. with regard to examination of the Complainant and the witnesses, but has introduced significant departure..."

The Court held that the proviso to Section 223(1) BNSS mandates an opportunity of hearing to the accused before taking cognizance. Accordingly, the order of cognizance dated 19.07.2024, passed by the Metropolitan Magistrate without hearing the accused, was invalid and rightly set aside by the ASJ.

However, with respect to the pre-summoning evidence, the Court directed that: "The recording of the statement of the Complainant/ witnesses is only to satisfy that the allegations/ averments made in the Complaint prima facie disclose a cognizable offence. This procedure, in fact, is for the protection of the accused from being summoned on frivolous Complaints."

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"The stage of Cognizance comes only after the recording of the statement and only thereafter, the issue arises of giving a Notice to the Accused..."

"Thus, it may be concluded that Section 223 BNSS has reiterated the procedural framework of Section 200 Cr.P.C. with regard to examination of the Complainant and the witnesses, but has introduced significant departure that after the Complainant/ witnesses as the Court may desire has been recorded, an opportunity of being heard be given to the accused before cognizance is taken."

Accordingly, the Court dismissed the petition, holding: "In view of the above discussion, it is held that the law has been rightly interpreted by ld. ASJ. The impugned Order does not suffer from any infirmity. The Petition is accordingly dismissed."

Advocates Representing the Parties:

For the Petitioners: Mr. Shubham Dayma, Advocate

Case Title: Brand Protectors India Pvt. Ltd. v. Anil Kumar

Neutral Citation: 2025: DHC:6044

Case Number: CRL.M.C. 1495/2025

Bench: Justice Neena Bansal Krishna