Pre-cognizance hearing requirement under BNSS applied to a post-commencement complaint, making the cognizance order unsustainable.

The proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 bars cognizance of a complaint offence unless the accused is first given an opportunity of being heard. Because the complaint was filed after 01.07.2024, Section 223 governed the proceeding, and the prior registration of the ECIR did not attract the repealed Code of Criminal Procedure, 1973. The decisive factor was the date of the complaint and the statutory hearing requirement attached to cognizance. On that basis, the cognizance order was unsustainable for want of notice and hearing before cognizance.

---

---

Issues: Whether the order taking cognizance on a complaint filed after 01.07.2024 could be sustained without giving the accused an opportunity of being heard under the Bharatiya Nagarik Suraksha Sanhita, 2023, and whether the proceedings were governed by the repealed Code of Criminal Procedure, 1973 because the ECIR had been registered earlier.

Analysis: The governing principle was taken from the Supreme Court's exposition that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 bars cognizance of a complaint offence without first hearing the accused. The complaint in question having been filed after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023, Section 223 applied to the proceeding. The plea that the earlier registration of the ECIR attracted the repealed Code of Criminal Procedure, 1973 was not accepted, as the decisive factor was the date of the complaint and the statutory mandate attached to cognizance.

Conclusion: The cognizance order was unsustainable for want of notice and hearing before cognizance, and the challenge to the order succeeded to that extent.

---