Pre-cognizance hearing under BNSS is mandatory before cognizance, and later-filed complaints are governed by the new procedure.

The first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires that the accused be given an opportunity of being heard before cognizance is taken, and that requirement is mandatory. It cannot be relaxed because the case also involves prior investigation or sanction under the Income-tax Act, 1961, or because an advance hearing may be inconvenient. Applying the rule that a statute must be followed in the manner it prescribes, the Court further noted that where complaints are filed and cognizance is taken after 01.07.2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 governs the cognizance stage. Non-compliance renders the cognizance order unsustainable.

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Issues: Whether, before taking cognizance of the complaints, 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; and whether the complaints and cognizance taken after the commencement of the Bharatiya Nagarik Suraksha Sanhita, 2023 were governed by that procedure notwithstanding prior investigation and sanction under the Income-tax Act, 1961.

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 Court held that this requirement is mandatory and cannot be diluted on the ground that the Income-tax Act, 1961 contains safeguards or that hearing before cognizance would be cumbersome. Relying on the principle that where a statute prescribes a particular manner for doing an act, it must be done only in that manner, the Court held that non-compliance is not a mere irregularity. The Court further applied Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and the later Supreme Court ruling on cognizance after commencement of the new procedural code, and concluded that because the complaints were filed and cognizance was taken after 01.07.2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 governed the stage of cognizance.

Conclusion: The Magistrate could not take cognizance without first affording the accused an opportunity of being heard, and the impugned orders were liable to be set aside.

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