S.223 BNSS | Cognizance Can't Be Taken On Complaint Without Giving Notice To Accused: Delhi High Court

Comparing the provisions of Code of Criminal Procedure and Bharatiya Nagarik Suraksha Sanhita, the Delhi High Court has held that cognizance cannot be taken on a complaint before giving notice to the accused under the new law. “Thus, it may be concluded that Section 223 BNSS has reiterated the procedural framework of Section 200 Cr.P.C. with regard to examination of the Complainant and the witnesses, but has introduced significant departure that after the Complainant/ witnesses as the Court may desire has been recorded, an opportunity of being heard be given to the accused before cognizance is taken,” Justice Neena Bansal Krishna said. The Court observed that under Section 200 of CrPC, the accused had no role till the stage of cognizance on the complaint and it was only after the Cognizance was taken that summons were issued to the Accused.However, it added that under the BNSS, there is a “marked change” as a procedural safeguard has been incorporated by way of first proviso to Section 223 (1) which mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.The Court further said that dismissal of a Complaint is a pre-issuance of process stage which does not permit the accused person to intervene in the course of enquiry by the Magistrate under Section 202 of Cr.P.C.Justice Krishna made the observations while dismissing the plea filed by company, Brand Protectors India Private Limited, for partially setting aside an order of the trial court which set aside the order of the Metropolitan Magistrate taking cognizance without issuing a notice to the accused persons, with the direction that the accused persons be heard before taking cognizance on the Complaint.It was the company's case that the pre-summoning evidence could not have been recorded by the MM without giving prior notice to it and an opportunity to cross-examine the witnesses.The Court dismissed the plea observing that the law was rightly interpreted by the sessions court and that the impugned Order did not suffer from any infirmity.Title: BRAND PROTECTORS INDIA PVT. LTD v. ANIL KUMARCitation: 2025 LiveLaw (Del) 842Click Here To Read Order

S.223 BNSS | Cognizance Can't Be Taken On Complaint Without Giving Notice To Accused: Delhi High Court

Nupur Thapliyal

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