Pre-cognizance hearing requirement under the new criminal procedure law governs complaints filed after commencement of the Sanhita.

For criminal complaints instituted after commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023, the governing law depends on the stage of proceedings immediately before that commencement; only pending appeals, applications, trials, inquiries and investigations continue under the Code of Criminal Procedure, 1973. Where the complaint itself is filed after the new Sanhita comes into force, the proceedings fall under the Bharatiya Nagarik Suraksha Sanhita, 2023. Under that framework, Section 223 requires an opportunity of hearing to the proposed accused before cognizance is taken in the prescribed manner, and an order issuing process without such hearing is contrary to the statutory mandate.

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Issues: (i) Whether a complaint filed after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023 in respect of offences alleged to have been committed earlier is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 or by the Code of Criminal Procedure, 1973; (ii) Whether cognizance taken and process issued without giving the proposed accused an opportunity of hearing was sustainable under the applicable procedural law.

Issue (i): Whether a complaint filed after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023 in respect of offences alleged to have been committed earlier is governed by the Bharatiya Nagarik Suraksha Sanhita, 2023 or by the Code of Criminal Procedure, 1973.

Analysis: Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 saves only those appeals, applications, trials, inquiries and investigations that were pending immediately before the commencement of the new Code, and requires such matters to continue under the Code of Criminal Procedure, 1973. The governing test is the stage of proceedings as on the date of commencement, not merely the date of the alleged offence or the prior registration of an FIR. Once the earlier stage had concluded and the complaint itself was instituted after the new Code came into force, the subsequent proceedings were required to be governed by the Bharatiya Nagarik Suraksha Sanhita, 2023.

Conclusion: The complaint was governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, and not by the Code of Criminal Procedure, 1973.

Issue (ii): Whether cognizance taken and process issued without giving the proposed accused an opportunity of hearing was sustainable under the applicable procedural law.

Analysis: Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires that, before cognizance is taken in the manner contemplated by that provision, the accused must be afforded an opportunity of hearing. The impugned order had proceeded on the footing of Section 200 of the Code of Criminal Procedure, 1973, which does not embody that safeguard. Since the complaint was to be dealt with under the Bharatiya Nagarik Suraksha Sanhita, 2023, the omission to hear the proposed accused before issuing process rendered the order contrary to the statutory mandate.

Conclusion: The order taking cognizance and issuing process was unsustainable.

Final Conclusion: The impugned order was set aside and the matter was remitted for fresh consideration under the procedural framework of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Ratio Decidendi: For determining whether pending criminal proceedings fall under the repealed Code or the new Sanhita, the decisive factor is the stage of the proceedings immediately before commencement of the new law, and where the new law applies it must be followed in its mandatory pre-cognizance safeguards.

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