Mandatory pre-cognizance hearing under BNSS applies at cognizance stage, even when income-tax investigation began earlier.

The Madras HC held that, before cognizance of complaints under the Income-tax Act, 1961, the accused must be given an opportunity of hearing under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and that this requirement is mandatory; non-compliance vitiates cognizance. It further held that where complaints were filed and cognizance taken after the Sanhita commenced, the new procedural regime applied at the cognizance stage even if investigation and sanction preceded commencement. On that basis, the cognizance orders were unsustainable and were set aside for fresh consideration according to law.

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Issues: (i) Whether, before taking cognizance of complaints under the Income-tax Act, 1961, the Magistrate was required to afford the accused an opportunity of being heard under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023. (ii) Whether the Bharatiya Nagarik Suraksha Sanhita, 2023 applied where the investigation and sanction for prosecution preceded its commencement, but the complaints and cognizance were taken after its commencement.

Issue (i): Whether, before taking cognizance of complaints under the Income-tax Act, 1961, the Magistrate was required to afford the accused an opportunity of being heard under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Analysis: The first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 expressly bars cognizance without giving the accused an opportunity of being heard. The requirement was treated as mandatory, and the Court rejected the contention that compliance would be an empty formality or could be diluted because the prosecution arose under the Income-tax Act, 1961.

Conclusion: Yes. The accused had to be heard before cognizance was taken, and non-compliance vitiated the cognizance order.

Issue (ii): Whether the Bharatiya Nagarik Suraksha Sanhita, 2023 applied where the investigation and sanction for prosecution preceded its commencement, but the complaints and cognizance were taken after its commencement.

Analysis: Under Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023, pending proceedings are saved under the earlier Code, but the relevant stage for applicability is the stage of cognizance. Since the complaints were filed and cognizance was taken after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023, the new procedural regime governed the cognizance stage.

Conclusion: Yes. The Bharatiya Nagarik Suraksha Sanhita, 2023 governed the cognizance stage, and the earlier investigation did not displace the statutory requirement of hearing the accused.

Final Conclusion: The cognizance orders were unsustainable for want of prior hearing to the accused and were set aside, with the matter sent back for fresh consideration in accordance with law.

Ratio Decidendi: Where the statute mandates that cognizance shall not be taken without hearing the accused, the requirement is compulsory; if cognizance is taken after the new procedural code has come into force, that code applies at the cognizance stage notwithstanding earlier investigation steps.

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