The Supreme Court recently held that where a Magistrate applied judicial mind and found a prima facie case only after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force, cognizance is deemed to have been taken on that date. The accused, therefore, had to be heard first, as the proviso to Section 223 of the BNSS requires.

A bench of Justice JB Pardiwala and Justice K Vinod Chandran set aside a Special Judge's order to the extent it found a prima facie case and took cognizance.

The Court framed the issue as “whether 'cognizance' has been taken in the protest petition filed under Section 200 of the Code of Criminal Procedure, 1973 (Cr.PC) before or after the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS) came into force w.e.f. 01.07.2024.”

An FIR was registered on 07.06.2022. The police filed a closure report on 06.08.2022. A protest petition was filed on 14.10.2022, and further investigation was ordered under Section 173(8) of the Code of Criminal Procedure, 1973 (CrPC, now Section 193(9) of BNSS 2023) on 29.11.2022. A second closure report was filed on 14.02.2023, and another protest petition on 28.04.2023.

The complaint was taken on board on 11.10.2023. The complainant's statement, along with those of other witnesses, was recorded on 06.03.2024. The Court noted that “the matter remained in limbo till 03.06.2026”, when the Special Judge (Scheduled Castes and Scheduled Tribe Prevention of Atrocities Act), Azamgarh, found prima facie commission of the offence and issued process against the accused.

Before the Supreme Court, Senior Advocate Shoeb Alam, representing the accused, argued that the 03.06.2026 order was the one by which cognizance was taken, after the BNSS had come into force. Relying on Parvinder Singh v. Directorate of Enforcement, it was submitted that cognizance could be taken “only after giving the accused an opportunity of being heard as is statutorily mandated in the proviso to Section 223 of the BNSS”.

On the contrary, the respondent contended that cognizance had been taken before the BNSS.

Senior Advocate Sayed Waseem Quadri argued for the complainant that no formal order is needed to show cognizance was taken. Relying on CREF Finance Ltd v Shree Shanthi Homes (P) Ltd and Zunaid v State of Uttar Pradesh & Ors it was argued that cognizance is different from issue of process and was taken “the minute the complaint was accepted to the files of the Court”.

The Supreme Court summarised CREF Finance, wherein it was held that cognizance is taken of the offence and not the offender. Once the court is satisfied that the case discloses an offence and proceeds further, it must be held to have taken cognizance. It also noted that cognizance is a word “of indefinite import, depending upon the statutory requirement”.

With regards to Zunaid, the bench recorded that on receiving a police report under Section 173, the Magistrate has three options. He may drop action, he may take cognizance and issue process without being bound by the police conclusion, or he may take cognizance under Section 190(1)(a) of CrPC (now Section 210(1)(a) of BNSS) on the original complaint and examine the complainant and witnesses on oath under Section 200 of CrPC (now Section 223 of BNSS).

The Court also noted that Parvinder Singh held that “under the BNSS, taking cognizance is nothing but an application of judicial mind and till such judicial mind is exercised, an inquiry cannot be deemed to have commenced”. It added that it is the position even under the CrPC. But, under the BNSS there is a further requirement to hear the accused before exercising the judicial mind.

Turning to the facts of the case, the Court said it will depend upon the manner in which the court has proceeded with a report filed by the police, or a protest complaint. It examined the earlier order on the protest petition, in which the court found an inquiry by itself justified and directed the complainant to be produced for evidence under Section 200 CrPC. The Court held as, “hence, the Court did not take cognizance at that stage and required the evidence of the complainant which was taken on 06.03.2024.”

The Court also noted that the complainant was examined as PW1, her husband as PW2 and a doctor as PW3. It then observed that no orders were passed and the matter was kept pending for almost two years.

Comparing the two orders, the bench concluded that it was the second order passed on 03.06.2026 where the judicial mind was applied, as prima facie case was found, deeming the cognizance having been taken, which is why the court had to summon the accused and hear him before such cognizance was taken.

The Court set aside the order dated 03.06.2026 “to the extent prima facie case was found, and cognizance was taken” and confined it to a “summons simplicitor”.

The accused has directed to appear before the trial court within one month.

“In the above circumstances, we set aside Annexure P26 order to the extent 'prima facie case was found, and cognizance was taken' and confine it to a 'summons simplicitor'. The appellant accused shall appear before the Court within a period of one month and on that day, or on any other day if the complainant or her counsel is not present, the matter shall be heard and appropriate orders passed.”

The appeal was, thus, allowed having no bearing on the merits of the case.

Case: Umar and Anr v State of Uttar Pradesh & Anr

Citation : 2026 LiveLaw (SC) 1002

Click here to read the judgment

Appearance:

For Appellant: :Mr. Shoeb Alam, Sr. Adv.; Mr. Rizwan Ahmad, AOR; Mr. Himanshu Gupta, Adv.; Mr. Amir Kaleem, Adv.; Mr. Shivam Yadav, Adv.; Mr. Mohd Shoaib Ansari, Adv.; Mr. Prakhar Verma, Adv.

For Respondent (state): Ms. Srishti Singh, AOR; Mr. Ghanshyam Singh, Adv.

For Complainant: Mr. Sayed Waseem Quadri, Sr. Adv.; Mr. Ramjee Pandey, AOR; Mr. Mushtaque Ahmad, Adv.; Mr. Anwar Ahmad, Adv.; Mr. Vinay Kumar Sharma, Adv.; Mr. Vivek Kumar, Adv.; Mr. Anubhav, Adv.; Mr. Inam Ahmad, Adv.