S.223 BNSS | Magistrate Cannot Take Cognizance On Complaint Without First Hearing Accused: Tripura High Court
The Tripura High Court has held that after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force, a Magistrate cannot take cognizance of an offence on a complaint without first giving the accused an opportunity of being heard. The Court clarified that the requirement under the first proviso to Section 223(1) of the BNSS is mandatory.Justice Biswajit Palit, while...
The Tripura High Court has held that after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force, a Magistrate cannot take cognizance of an offence on a complaint without first giving the accused an opportunity of being heard. The Court clarified that the requirement under the first proviso to Section 223(1) of the BNSS is mandatory.
Justice Biswajit Palit, while exercising jurisdiction under Section 528 of the BNSS, held, “an order passed on any complaint after 01.07.2024 directly taking cognizance of any offence without hearing the accused would amount to bad in law and also abuse of the process of the Court and without jurisdiction.”
The ruling came in a petition filed under Section 528 of the BNSS seeking quashing of the order dated July 12, 2024 passed by the Chief Judicial Magistrate, West Tripura, Agartala in CR 209 of 2024 on the ground of non-compliance with Section 223 of the BNSS.
The complaint had been filed by Kotak Mahindra Bank Ltd. against the petitioners and others alleging offences under Sections 61(2), 314, 316, 318, 320, 321, 323 and 324 of the Bharatiya Nyaya Sanhita, 2023.
The petitioners contended that the CJM directly took cognizance on the date of filing the complaint without giving them an opportunity of hearing and thereafter transferred the matter to another Magistrate.
The State opposed the petition, arguing that there was no illegality since the CJM had not recorded the statement of the complainant or witnesses and had instead transferred the matter to another Court.
The High Court examined Section 223 of the BNSS, which governs examination of a complainant. The Court particularly noted the newly introduced first proviso to Section 223(1), which provides that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
It also considered Section 2(h), which defines a “complaint”, and the further provisos permitting non-examination of the complainant and witnesses where the complaint is made by a public servant or Court, or where the Magistrate makes over the case under Section 212. The third proviso dispenses with re-examination where the complainant and witnesses have already been examined before the case is transferred.
The Court rejected the argument that the earlier procedure under Section 200 CrPC could govern the complaint. It noted that the BNSS came into force on July 1, 2024 and specifically introduced the requirement of hearing the accused before cognizance.
The Court observed that “it shall be mandatory for the Magistrate before taking cognizance of offence on any complaint to hear the accused” and thereafter proceed in accordance with Section 223.
The Court also considered the Supreme Court's decision in Kushal Kumar Agarwal v. Directorate of Enforcement, which dealt specifically with the first proviso to Section 223(1). The Tripura High Court relied on the principle that the proviso places an embargo on taking cognizance without giving the accused an opportunity of being heard.
Relying on the statutory scheme, including Section 61(2) and Sections 314, 316, 318, 320, 321, 323 and 324 of the BNS, the Court found that the complaint in the present case was filed after the BNSS had come into force. Since the accused had not been heard before cognizance was taken, the order of the CJM could not be sustained.
Accordingly, the High Court allowed the petition, setting aside the impugned order. The matter was remanded to the CJM, West Tripura, Agartala for rehearing and for proceeding afresh as per Section 223 of the BNSS. The Court also directed the parties to appear before the CJM. The Court also directed circulation of the order to all Criminal Courts across Tripura.
Case Title: Dipankar Majumder & Anr. v. The State of Tripura & Anr.
Case No.: Crl.P. No.33 of 2026