Madras High Court Seeks Centre's Response On Challenge To BNSS Provision On Pre-Cognizance Hearing

A plea has been filed in the Madras High Court challenging the first proviso of Section 223 of the BNSS. As per the first proviso to Section 223 of the BNSS, A magistrate cannot take cognisance of an offence without giving the accused an opportunity of being heard. The plea, filed by Nakkheeran Gopal, an investigative journalist and owner of Nakkheeran Publications, states that the proviso is redundant, prolongs the trial, is repugnant to timely justice and ultra vires to the Constitution. The plea thus seeks to lay down correct trial procedure for the criminal defamation complaint, settling conflicts in Sections 210, 223, 225, and 227 of BNSS. The bench of Chief Justice SA Dharmadhikari and Justice G Arul Murugan has admitted the plea and issued notice to the Ministry of Law and Justice and the Ministry of Home Affairs. In his plea, Gopal stated that as part of his profession, he had been publishing critical articles about the alleged illegalities happening at Isha Foundation, by Jaggi Vasudev. He submitted that after the articles were published, Isha Foundation published a defamatory article against him. Against this, he had filed a defamation complaint before the Metropolitan Magistrate, Egmore. It was submitted that after a pre-cognisance enquiry was conducted and Gopal's sworn statement was also recorded for establishing the ingredients of the offence of defamation under Section 356 (1) BNS. It was further submitted that the Magistrate insisted that a summons be issued to all accused, affording them the opportunity of being heard under the first proviso of Section 223(1) of BNSS. This prompted Gopal to approach the high court, challenging the legality of the provision. Gopal submitted that while Section 223 of BNSS was pari materia with Section 200 of CrPC, the first proviso was inserted additionally. He submitted that by mandating that all the accused be heard before taking cognisance, the proviso becomes repugnant to delivery of timely justice as it is practically very difficult to serve summons to all the accused. It is submitted that under the old provision, 3 defending opportunities were given to the accused – dismissal of the complaint under Section 202 and 203 of CrPC, challenging cognisance under Section 190 CrPC, appeal if convicted under Section 255 of CrPC. It has been argued that the new provision gives two more defending opportunities – proviso of Section 274 BNSS, giving an opportunity to the accused for discharge and proviso to Section 223 (1), giving accused an opportunity of being heard before cognizance. It has been submitted that the new proviso puts a heavy burden on the complainant. It has been stated that if there are many accused, there are chances that the trial would go endlessly, denying timely justice to the aggrieved. Gopal submitted that there are inbuilt contradiction between different provisions under BNSS. It has been pointed out that under Section 210 the magistrate can straight away take cognizance, under Section 227 Magistrate could issue summons if there is sufficient ground, as per Section 223 the Magistrate need not examine the complainant and witness if complaint is in writing, and as per Section 225 the Magistrate has to take evidence of the witnesses to decide sufficient grounds. It has been argued that these in built contradictions, the Magistrate is put in a conundrum. Thus, the plea seeks to declare the first proviso to Section 223(1) a redundant and ultra vires to the constitution. Case Title: Nakkheeran Gopal v. Union of India and Others Case No: WP 6087 of 2026

Madras High Court Seeks Centre's Response On Challenge To BNSS Provision On Pre-Cognizance Hearing

Upasana Sajeev

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