Pre-cognizance hearing under BNSS is mandatory when a post-commencement complaint is filed before cognizance.

Where a complaint is filed after commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023, cognizance cannot be taken without first issuing notice to the accused and granting a pre-cognizance hearing under the proviso to Section 223(1). The parties accepted that this requirement applied, and the impugned order was passed without affording that hearing. The High Court treated the notice-and-hearing safeguard as mandatory, held the order unsustainable, set it aside, and directed fresh consideration after hearing the petitioner.

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Issues: Whether, in a complaint filed after 01.07.2024, the accused was entitled to notice and a pre-cognizance hearing under the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 before cognizance was taken.

Analysis: The complaint had been filed after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023. The parties accepted that the statutory requirement of issuing notice to the accused before taking cognizance applied in such a case. The impugned order had been passed without affording that hearing.

Conclusion: The requirement of notice and hearing under the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was mandatory, and the impugned order could not be sustained. It was set aside and the matter was directed to be decided afresh after hearing the petitioner.

Ratio Decidendi: Where a complaint is filed after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023, cognizance cannot be taken without first issuing notice and affording a pre-cognizance hearing to the accused under the proviso to Section 223(1).

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