Pre-cognizance hearing under Section 223 requires sworn statement first, then notice to the accused before cognizance.

Under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, a Magistrate must record the complainant's sworn statement, and any supporting witness statements, before proceeding to the stage of notice to the accused. The proviso requires that the accused be given an opportunity of being heard before cognizance is taken, so notice cannot be issued merely on filing of the complaint. Section 227 on issuance of process applies at a later stage and does not govern this initial procedure. The stated procedure therefore treats the hearing opportunity as a pre-cognizance safeguard, and the contrary practice was erroneous.

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Issues: Whether, on a private complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, notice to the accused must be issued only after recording the complainant's sworn statement and before taking cognizance.

Analysis: Section 223 requires the Magistrate, while taking cognizance on a complaint, to examine the complainant on oath and reduce the substance of such examination into writing. The proviso mandates that no cognizance shall be taken without giving the accused an opportunity of being heard. The notice contemplated by the proviso is therefore not an immediate step on mere filing of the complaint, but follows the recording of the complainant's sworn statement and any witness statements, so that the accused is given a meaningful opportunity to respond before cognizance is taken. Section 227, which deals with issuance of process, is a later stage and does not control the initial procedure under Section 223.

Conclusion: Notice to the accused cannot be issued merely upon presentation of the complaint; it must follow recording of the sworn statement, and cognizance can be taken only after giving the accused an opportunity of being heard. The impugned procedure was erroneous.

Ratio Decidendi: Under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the accused must be heard after the complainant's sworn statement is recorded and before cognizance is taken.

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