Magistrate Must Examine Complainant, Witnesses Before Hearing Accused On Cognizance Of Private Complaint: Delhi High Court

The Delhi High Court has held that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a Magistrate must first examine the complainant and the witnesses present on oath, unless such examination is exempted by law, before issuing notice to the accused and granting an opportunity of being heard on the question of taking cognizance.

The Division Bench of Justices Navin Chawla and Ravinder Dudeja clarified that the hearing of the accused is mandatory before formal cognizance is taken, but the notice cannot be issued immediately upon presentation of the private complaint, before the statements of the complainant and witnesses are recorded.

The Court was answering a reference concerning the stage at which a Magistrate can be said to have taken cognizance of an offence under the BNSS and the stage at which notice is required to be issued to the proposed accused under the first proviso to Section 223(1).

Answering the first question, the Bench held that the Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless exempted by statute, and after giving an opportunity of hearing to the accused.

“Therefore, under Section 223(1) of the BNSS, the examination of the complainant and the witnesses present on oath, unless exempted, and hearing the accused, are steps prior to taking the cognizance of the offence by the Magistrate,” it held.

On the second question, the Court held that notice to the accused is required after the Magistrate has examined the complainant and witnesses present on oath and formed a prima facie opinion that the complaint does not deserve dismissal under Section 226 BNSS, but cognizance may deserve to be taken.

“However, formal decision of taking cognizance can be taken by the Magistrate only after granting an opportunity of being heard to the accused,” it added.

The Court noted that Section 223 of BNSS marks a significant change from the position under the erstwhile CrPC where the accused had no right to be heard at the stage of taking cognizance.

It observed that the examination of the complainant and witnesses has now become part of the process of taking cognizance under the BNSS, unlike the position under the CrPC.

It further held that issuing notice to the accused before recording the statements of the complainant and witnesses could restrict or render redundant the right of hearing conferred upon the accused.

The Court emphasised that the right of hearing introduced by the first proviso to Section 223(1) is intended to be meaningful. The accused can place before the Magistrate the limited grounds on which cognizance ought not to be taken, including that even if the complaint and statements of the complainant and witnesses are taken at face value, no offence is disclosed.

As such, the Bench answered the reference by holding that the Magistrate must examine the complainant and witnesses, unless exempted, and thereafter, if the complaint survives scrutiny under Section 226 BNSS, issue notice to the accused and hear them before formally taking cognizance.

Appearance: Mr.Rakesh Malhotra, Mr.Bharat Malhotra, Mr.Kushal Malhotra, Mr.Abhijeet Singh and Ms.Gayatri Bhatia, Advs. for Petitioner; Mr.Raajan Chawla and Ms.Pooja Joshi, Advs. for R-1 Mr.Aman Usman, APP with Mr.Manvendra Yadav, Adv. for R-2/State Mr.Amit Tiwari, CGSC with Ms.Ayushi Srivastava, Mr.Arpan Narwal, Mr.Kushagra Malik and Mr.Ujjwal Tyagi, Advs. for UOI