Mandatory hearing before cognizance under BNSS bars complaint proceedings without prior compliance and sanction review.

Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was treated as mandatory in complaints, requiring the accused to be given an opportunity of being heard before cognizance is taken. The Kerala HC noted that cognizance had been taken and summons issued without complying with that proviso, which rendered the cognizance order unsustainable. It further stated that, in such prosecutions, the question of sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 or the corresponding CrPC provision must also be examined before cognizance. The proceedings were therefore returned to the pre-cognizance stage for fresh compliance.

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Issues: Whether cognizance taken on a complaint under the Prevention of Money-Laundering Act, 2002 could be sustained without giving the accused an opportunity of being heard under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and without considering the question of sanction before taking cognizance.

Analysis: Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires the Magistrate, while taking cognizance on a complaint, to give the accused an opportunity of being heard before cognizance is taken. The proviso is mandatory and operates as an embargo on the power to take cognizance. The materials showed that cognizance had been taken and summons issued without complying with that requirement. The Court also noted that, in prosecutions of this nature, the question of sanction under Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 or the corresponding provision under the Code of Criminal Procedure, 1973 had to be examined before cognizance.

Conclusion: The cognizance order was unsustainable and was set aside. The proceedings were returned to the pre-cognizance stage with a direction to comply with the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 and to consider the question of sanction before taking cognizance again.

Ratio Decidendi: Where a complaint is governed by Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, cognizance cannot be taken unless the accused is first given an opportunity of being heard, and non-compliance vitiates the cognizance order.

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