S.223 BNSS | Accused Must Be Heard Before Magistrate Takes Cognizance Of Offence Based On Complaint: Kerala High Court

The Kerala High Court recently held that a magistrate must give an opportunity of hearing to the accused person before taking cognizance of an offence based on a complaint. The Court found that this is a mandate under the proviso to Section 233 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.Justice Badharudeen observed:“Thus, the crucial aspect of Section 223(1) is the first proviso, which mandates that the Magistrate cannot take cognizance of the offence without first giving the accused an opportunity to be heard. This is a significant departure from the provisions of the Cr.P.C, which did not mandate this pre-cognizance hearing for the accused.”The petitioners in the case are accused persons against whom criminal proceedings were initiated by the Vigilance and Anti-Corruption Bureau (VACB). The allegation is that the 1st petitioner amassed around Rs. 1.5 crores, i.e., 113.45% in excess of his known sources of income in his 14 years as a government servant. Thus, offences under Section 13(1)(e), (2) of the Prevention of Corruption Act, 1988 and under Sections 4, 3 of the Prevention of Money-Laundering Act, 2002 were registered.The present petition was filed seeking to quash the criminal proceedings stating that the Magistrate took cognizance of the complaint filed by the Enforcement Directorate without first issuing notice under Section 223 BNSS. It was also urged that no previous sanction was taken under Section 218 of the BNSS.Comparing Section 223 BNSS with its corresponding section in the Cr.P.C. (Code of Criminal Procedure), the Court observed:“A key addition in Section 223(1) of the BNSS is the requirement that the accused must be given an opportunity to be heard before the Magistrate takes cognizance of the offence...Similarly, examination of the complainant and witnesses is not required if the complaint is made by a public servant in their official capacity or by a court. Additionally, if a case is transferred under Section 212 of BNSS, the new Magistrate is not required to re-examine the complainant and witnesses if they were already examined by the previous Magistrate.”It also referred to the judgment of the Apex Court in Kushal Kumar Agarwal v. Directorate of Enforcement which held that procedural safeguards under the BNSS apply to money laundering complaints filed by the Enforcement Directorate. Reliance was also placed on Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office wherein it was held that the provisions of the Cr.P.C./BNSS would apply in complaints lodged under the PMLA Act.Thus, the Court allowed the petition and send the case back to the pre-cognizance stage. It also directed the Special Court to give opportunity of hearing to the accused and to consider whether there is a requirement of sanction before proceeding to take cognizance.Case No: Crl.M.C. No. 5631 of 2025 Case Title: Saji John and Anr. v. State of Kerala and Anr.Citation: 2025 LiveLaw (Ker) 468Counsel for the petitioners: Arun Varma, Rohit R.Counsel for the respondents: Jaishankar V. Nair – SC, Enforcement DirectorateClick To Read/Download Judgment

S.223 BNSS | Accused Must Be Heard Before Magistrate Takes Cognizance Of Offence Based On Complaint: Kerala High Court

K. Salma Jennath

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