Magistrates must examine complainants on oath before giving accused hearing opportunity under Section 223(1) BNSS

The Kerala HC ruled on the procedural requirement under Section 223(1) of BNSS regarding notice to accused before taking cognisance of offences. The court held that cognisance occurs when a Magistrate takes judicial notice of an offence to initiate proceedings, after which they decide on issuing process under Section 225. The court noted that while the proviso to Section 223(1) BNSS introduces a radical procedural change by mandating opportunity of hearing to the accused before taking cognisance, Section 226 does not consider the accused's objection as grounds for dismissing complaints. Following precedents and statutory language, the HC directed that Magistrates must first examine complainants and witnesses on oath, then provide hearing opportunity to accused if proceeding with cognisance. The impugned order was quashed and appeal allowed.

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1. ISSUES PRESENTED and CONSIDERED

1. Whether Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) mandates issuance of notice to the accused before or after taking cognizance of the offence on a complaint.

2. The procedural sequence to be followed by the Magistrate under Section 223(1) BNSS concerning examination of the complainant and witnesses, issuance of notice to the accused, and taking cognizance.

3. The interpretation and effect of the proviso to Section 223(1) BNSS in comparison with the corresponding provisions under the Code of Criminal Procedure (Cr.P.C.), specifically Section 200 Cr.P.C.

4. Whether the accused has any locus standi or right to be heard at the stage of taking cognizance under BNSS.

5. The applicability and relevance of judicial precedents interpreting cognizance, examination of complainants, and issuance of process under Cr.P.C. to the new procedural regime under BNSS.

6. The effect of Section 226 BNSS on the accused's objection at the stage of taking cognizance.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1 & 2: Timing and procedure of issuance of notice to the accused under Section 223(1) BNSS

Legal framework and precedents: Section 223(1) BNSS requires that upon taking cognizance of an offence on complaint, the Magistrate shall examine the complainant and witnesses on oath, reduce the substance of such examination to writing, and sign it. The proviso to Section 223(1) mandates that no cognizance shall be taken without giving the accused an opportunity of being heard. This is a departure from Section 200 Cr.P.C., which lacks such a proviso.

The High Court of Karnataka in Basanagouda R Patil v. Shivananda S Patil (2024) held that the Magistrate must first examine the complainant and witnesses on oath, then issue notice to the accused, and only thereafter take cognizance of the offence.

Court's interpretation and reasoning: The Court analyzed the language of Section 223(1) BNSS, emphasizing the sequence: first examination of complainant and witnesses, then issuance of notice to the accused, and finally taking cognizance. The proviso's mandate to give the accused an opportunity to be heard before taking cognizance is interpreted as requiring notice issuance after examination but before cognizance.

By contrast, the Magistrate below issued notice to the accused prior to examining the complainant and witnesses, which was held to be contrary to the statutory scheme.

Application of law to facts: The Court quashed the impugned order that issued notice prematurely and directed the Magistrate to first examine the complainant and witnesses on oath. Only if the Magistrate proceeds to take cognizance thereafter, the accused must be given notice and an opportunity to be heard.

Conclusions: Notice to the accused under Section 223(1) BNSS must be issued only after the complainant and witnesses are examined on oath and before the Magistrate takes cognizance of the offence. Issuance of notice before such examination is improper and illegal.

Issue 3: Comparison of Section 223(1) BNSS with Section 200 Cr.P.C. and significance of the proviso

Legal framework and precedents: Section 200 Cr.P.C., the corresponding provision under the Code, does not contain a proviso requiring notice to the accused before taking cognizance. The Apex Court in A.R. Antulay v. Ramdas Sriniwas Nayak clarified that under Cr.P.C., the Magistrate examines the complainant and witnesses on oath and then may issue process (taking cognizance) without necessarily issuing notice before cognizance.

Court's interpretation and reasoning: The Court noted that the proviso in Section 223(1) BNSS represents a "radical change" from the Cr.P.C. procedure by explicitly requiring an opportunity of hearing to the accused before cognizance is taken. The Court reasoned that this legislative innovation aims to provide a pre-cognizance safeguard to the accused, which was absent under Cr.P.C.

Conclusions: The procedural requirements under BNSS differ materially from Cr.P.C., mandating notice and opportunity to the accused before cognizance, thereby altering the traditional approach.

Issue 4: Locus standi and right of the accused to be heard at the stage of taking cognizance

Legal framework and precedents: Under Cr.P.C., as per Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, the accused has no locus standi at the stage of issuance of process (cognizance) and is not entitled to be heard on whether process should be issued. The inquiry under Section 202 Cr.P.C. is limited to the complainant's materials and does not consider the accused's defence.

Court's interpretation and reasoning: BNSS, through the proviso to Section 223(1), diverges from this position by mandating that the accused be given an opportunity of being heard before cognizance. This confers a right to the accused to be heard at an earlier stage than under Cr.P.C.

Treatment of competing arguments: The petitioner argued that notice to the accused before examination of complainant was illegal. The Magistrate's issuance of notice before examination was challenged as contrary to the statute. The Court accepted the petitioner's argument, relying on the statutory language and the Karnataka High Court precedent.

Conclusions: Unlike Cr.P.C., BNSS grants the accused a statutory right to be heard before cognizance is taken, thus providing locus standi at this stage.

Issue 5: Interpretation of "cognizance" and procedural implications

Legal framework and precedents: The Supreme Court in S.K. Sinha v. Videocon International Ltd. explained that "cognizance" means judicial notice of an offence to initiate proceedings. It occurs when the Magistrate applies his mind to the offence. Section 225 BNSS empowers the Magistrate to postpone issuing process even after taking cognizance, and to inquire or direct investigation for deciding sufficiency of grounds.

Court's interpretation and reasoning: The Court emphasized that taking cognizance is a judicial act marking the initiation of proceedings. Under BNSS, the Magistrate must first examine complainant and witnesses, then issue notice to the accused, and only then take cognizance, consistent with the statutory mandate.

Application of law to facts: The Court found that the Magistrate's premature issuance of notice before examination did not align with the concept of cognizance as judicial notice post-examination and pre-notice.

Conclusions: Cognizance under BNSS occurs after examination of complainant and witnesses and after notice and hearing of the accused, marking the formal initiation of proceedings.

Issue 6: Effect of Section 226 BNSS on accused's objection at the stage of taking cognizance

Legal framework: Section 226 BNSS does not consider the accused's objection at the stage of taking cognizance as a relevant factor for dismissal of the complaint.

Court's interpretation and reasoning: The Court observed that while the accused must be given an opportunity to be heard before cognizance, their objection does not automatically result in dismissal of the complaint. The Magistrate retains discretion to proceed after hearing.

Conclusions: The accused's hearing before cognizance is a procedural safeguard but does not confer a veto power to dismiss the complaint at that stage.

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