Section 223 BNSS: Hear the Accused Before Cognizance | Delhi HC

Imagine opening a summons and discovering that a criminal complaint against you has already been taken up by a court, and that you were never asked a single question. Under the old Code of Criminal Procedure, that was the ordinary course of things. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, it is no longer allowed, and the Delhi High Court has now explained exactly how the new rule must work. A Division Bench settles the sequence of sworn examination, notice and hearing in private criminal complaints, and explains why the word “while” changed everything Title: Dr Rita Bakshi v. Seema Bajaj & Anr.; Anita Rani Mehra & Anr. v. Neena Kapoor (connected matters decided on a common reference) Case Name: Dr Rita Bakshi v. Seema Bajaj & Anr. (lead matter) Case Number: CRL.M.C. 2551/2025 (lead matter). Add the connected petition’s number from the judgment PDF. Court: High Court of Delhi (Division Bench) Judges: Justice Navin Chawla and Justice Ravinder Dudeja Judgment Date: 29 September 2026 (inferred from the reports and the judgment’s file name; confirm on the signed copy) Citation: 2026:DHC:8460-DB; 2026 LiveLaw (Del) 955 ABSTRACT This case analysis examines the Division Bench ruling of the Delhi High Court in Dr Rita Bakshi v. Seema Bajaj & Anr., decided together with Anita Rani Mehra & Anr. v. Neena Kapoor. The ruling answers a reference on the procedure a Magistrate must follow when taking cognizance of an offence on a private complaint under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court held that the Magistrate can take cognizance only after examining the complainant and the witnesses present on oath (unless the statute exempts that examination) and after giving the proposed accused an opportunity of being heard. It further held that notice to the accused must be issued after the sworn examination, once the Magistrate forms a prima facie view that the complaint should not be dismissed under Section 226 BNSS, and not immediately on presentation of the complaint. The analysis traces the shift from Section 200 of the Code of Criminal Procedure, 1973 (CrPC) to Section 223 BNSS. It covers the Court’s reading of the word “while”, its treatment of the Supreme Court’s decision in Parvinder Singh v. Directorate of Enforcement (2026) and of Delhi Race Club (1940) Ltd. v. State of U.P., and the practical consequences for complainants, accused persons, Magistrates and practitioners. TABLE OF CONTENTS Introduction: Why This Ruling Matters Facts and How the Reference Arose The Legal Framework: From Section 200 CrPC to Section 223 BNSS Questions Before the Division Bench Competing Positions and the Alleged Tension With Supreme Court Precedent Reasoning of the Court: The Word “While”, the Remedial Proviso and the Absence of Merger Holding and Operative Directions Precedents Relied On and Their Role Critical Analysis Practical Impact: What Changes for Courts, Complainants and the Accused Conclusion Frequently Asked Questions INTRODUCTION: WHY THIS RULING MATTERS Criminal law in India has long drawn a quiet line between the State’s power to prosecute and a private citizen’s right to set that power in motion. A private complaint, filed directly before a Magistrate without a police report, is the most direct form of that right. It is also, in practice, one of the easiest ways to put pressure on an opponent, because under the old procedure the accused had no say at the stage where the court decided to take the complaint on file. The Bharatiya Nagarik Suraksha Sanhita, 2023 deliberately changed this. The first proviso to Section 223(1) BNSS says that no cognizance can be taken without giving the accused an opportunity of being heard. What Parliament left open was a practical question: at what exact moment does the hearing happen, and what must the Magistrate do first? That gap produced conflicting orders across Magistrate courts and single-judge benches. In Dr Rita Bakshi v. Seema Bajaj & Anr., a Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja answered that question with a clear sequence. The Magistrate first examines the complainant and the witnesses present on oath. If the complaint survives preliminary scrutiny, the accused is then given notice and heard. Only after that does the Magistrate formally take cognizance. For lawyers drafting complaints, for accused persons receiving notices, and for law students trying to understand how the BNSS differs from the CrPC, this is now the controlling Delhi High Court position on one of the most litigated procedural points of the new criminal code. FACTS AND HOW THE REFERENCE AROSE The Division Bench was not hearing an appeal on the merits of any underlying dispute. It was deciding a reference arising from two connected petitions in which proposed accused persons challenged the way Magistrates had applied Section 223 BNSS. In the first petition, a Judicial Magistrate had issued notice to the proposed accused under Section 223 before recording the complainant’s pre-summoning evidence. In the connected petition, the challenged orders directed notice to the proposed accused immediately upon receipt of the private complaint. In both situations, the petitioners argued that the notice had come too early to be meaningful, because they were being asked to respond to allegations that no one had yet tested on oath. The matters first came before a Single Judge, who noticed that earlier decisions of the Delhi High Court and of other High Courts had already taken the view that the complainant and witnesses must be examined first and the accused notified afterwards. The Single Judge also saw an apparent divergence between that line of authority and Supreme Court judgments explaining that, under the CrPC, cognizance is taken when the Magistrate applies judicial mind to the complaint with a view to proceeding under the complaint-case provisions. Since this raised a question of how the older precedents interact with the new statute, the issues were referred to a larger Bench. The Division Bench heard Senior Advocate Pavan Narang and other counsel for the petitioners, counsel for the complainants, the Additional Public Prosecutor for the State and the Central Government Standing Counsel for the Union of India. THE LEGAL FRAMEWORK: FROM SECTION 200 CrPC TO SECTION 223 BNSS To appreciate the Court’s reasoning, it helps to place the old and new provisions side by side. Under the CrPC, a Magistrate took cognizance of an offence on a complaint under Section 190 CrPC, and only after that did the Magistrate examine the complainant and the witnesses on oath under Section 200 CrPC. The Magistrate could then postpone issuance of process and order an inquiry under Section 202 CrPC, dismiss the complaint under Section 203 CrPC, or issue process under Section 204 CrPC. The accused played no part until process had been issued. In the BNSS, these provisions correspond to Section 210 (cognizance), Section 223 (examination of the complainant and witnesses), Section 225 (postponement of issue of process and inquiry), Section 226 (dismissal of complaint) and Section 227 (issue of process). According to the Division Bench, Section 223 introduced two material changes compared with Section 200 CrPC. The first is a change of wording: the Magistrate “having jurisdiction while taking cognizance” shall examine the complainant and witnesses present on oath. The second is the first proviso, which prohibits taking cognizance without giving the accused an opportunity of being heard. Together, these changes turn what was previously a post-cognizance step into part of the process of taking cognizance itself, and they add a hearing for the accused at the threshold. The Court treated these as deliberate legislative choices that could not be read away by importing the older understanding of how and when cognizance occurred. QUESTIONS BEFORE THE DIVISION BENCH The reference required the Division Bench to settle two connected questions. The first concerned the stage at which a Magistrate can be said to have taken cognizance of an offence on a private complaint under the BNSS. Is it when the complaint is first received and read, or only after the sworn examination and the hearing of the accused? The second concerned the timing of the notice under the first proviso to Section 223(1). Should the Magistrate issue the notice as soon as the complaint is presented, should the timing be left to the Magistrate’s discretion, or must the notice follow the examination of the complainant and witnesses? The Union of India urged that the Magistrate should retain discretion on timing, while the petitioners pressed for a fixed sequence in which the sworn statements come first. COMPETING POSITIONS AND THE ALLEGED TENSION WITH SUPREME COURT PRECEDENT The difficulty that prompted the reference was genuine. For decades, the Supreme Court had explained that cognizance does not involve a formal action or a declaration. It occurs as soon as the Magistrate applies his mind to the allegations in the complaint with the object of proceeding further. On that understanding, cognizance under the CrPC was complete before the examination of the complainant under Section 200. If the same understanding were carried into the BNSS without change, the Magistrate would already have taken cognizance when the complaint was first read, and a hearing of the accused “before cognizance” would be impossible. That reading would have deprived the first proviso of any real content. The opposing concern was equally practical. If the Magistrate issued notice at the very beginning, the accused would be asked to answer an unverified complaint. The sworn evidence of the complainant would then be recorded in the presence of an accused who had been given the chance to influence it, even though the statute does not give the accused any right to participate in that examination. A discretionary approach, as suggested on behalf of the Union, would have produced uneven practices across Magistrate courts. The Division Bench had to choose a reading that gave real effect to the proviso, respected the legislative text, and did not undermine the settled meaning of cognizance more than the new statute required. REASONING OF THE COURT: THE WORD “WHILE”, THE REMEDIAL PROVISO AND THE ABSENCE OF MERGER The core of the judgment rests on the word “while” in Section 223(1) BNSS. The Bench read it in its ordinary temporal sense. Because the Magistrate is directed to examine the complainant and witnesses while taking cognizance, the examination is no longer something that follows cognizance, as it did under the CrPC. It is part of the process by which cognizance is taken. The Court explained that earlier decisions describing the CrPC procedure cannot be applied mechanically, because the legislature has altered the sequence. The same logic applies to the first proviso: if cognizance cannot be taken without hearing the accused, then the hearing is necessarily a step that comes before the formal decision to take cognizance. The Court characterised the first proviso as a remedial provision intended to cure a mischief, namely the serious prejudice caused when criminal process was set in motion against a person who had not been given any chance to be heard. It stated that such a provision must be given full force and made effective, and that the only way to do so is to issue the notice after the Magistrate has examined the complainant and witnesses. A notice issued earlier would be a futile exercise, because the accused would be responding to bare allegations, and it could restrict or even make redundant the right the legislature purposefully conferred. The Court added that notice before the examination may also allow the accused to interfere with the recording of the statements, a participation the statute has not granted. The Bench also rejected the argument that placing the hearing before cognizance would merge cognizance with the issuance of process. It explained that even after hearing the accused and deciding to take cognizance, the Magistrate must still decide separately whether to postpone issuance of process and order an inquiry under Section 225, to dismiss the complaint under Section 226, or to issue process under Section 227. These are distinct stages, and the BNSS keeps them distinct. Finally, the Court defined the limits of what the accused can argue at the pre-cognizance hearing. The right is a limited one: the accused can show that even if the complaint and the statements of the complainant and witnesses are accepted at face value, no offence is disclosed. It is not an occasion for a mini-trial or for contesting the facts. HOLDING AND OPERATIVE DIRECTIONS On the first question, the Division Bench held that the Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless the statute exempts that examination, and after giving the accused an opportunity of being heard. Under Section 223(1) BNSS, therefore, the sworn examination and the hearing of the accused are steps that precede the taking of cognizance. Where the statute itself exempts the examination of the complainant or witnesses, notice to the accused must follow without insisting on that step. Where the examination is required, a meaningful notice can only be issued after the statements have been recorded. On the second question, the Court held that the Magistrate must issue notice under the first proviso after examining the complainant and the witnesses present on oath, unless exempted, and after forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226 BNSS but that cognizance may deserve to be taken. The formal decision to take cognizance can be made only after the accused has been given an opportunity of being heard. Having answered the reference, the Division Bench directed that the petitions be placed before the appropriate Roster Bench for further proceedings. The ruling therefore operates as a binding statement of procedure for Magistrates in Delhi, while the individual challenges return to be decided in light of it. PRECEDENTS RELIED ON AND THEIR ROLE The Court placed significant weight on the Supreme Court’s 2026 decision in Parvinder Singh v. Directorate of Enforcement. As reported, that decision treats the first proviso to Section 223(1) BNSS as substantive and mandatory, ties it to the accused’s right to a fair trial under Article 21 of the Constitution, and holds that cognizance taken without complying with it is void from inception. This gave the Division Bench strong support for refusing any interpretation under which the hearing is optional or can be satisfied by a notice that comes too early to matter. The Court also referred to Delhi Race Club (1940) Ltd. v. State of U.P. in describing the limited grounds on which an accused can persuade a Magistrate not to take cognizance. These include situations in which, even on the complainant’s own case, the ingredients of an offence are not made out. The ruling further engages, in the background, with the long line of Supreme Court authority on the meaning of cognizance under the CrPC, which the Single Judge had flagged as a potential point of divergence. The Division Bench’s answer was not to disagree with that authority but to hold that it described the CrPC scheme and cannot control the differently worded BNSS provision. CRITICAL ANALYSIS The strength of the judgment is its fidelity to text. The word “while” and the first proviso are the two changes the legislature made, and the Court builds its sequence directly from them rather than from policy preferences. By treating the proviso as remedial and reinforcing it with Article 21 and the Supreme Court’s characterisation in Parvinder Singh, the Bench avoids the risk that the new safeguard becomes a ritual notice with no effect. The rejection of a discretionary timing model also removes the likelihood of inconsistent practices across Magistrate courts, which is valuable for litigants who previously could not predict at what stage their notice would arrive. There are, however, questions worth watching. First, the ruling slightly stretches the traditional understanding of cognizance by making the sworn examination part of the cognizance process. The Court reconciles this by treating the statute as having changed the position, but other High Courts and the Supreme Court may refine the point. Second, the pre-cognizance hearing is deliberately narrow, so its value depends on Magistrates applying the Section 226 screening carefully before issuing notice. Third, there is a practical concern about delay. Adding a hearing stage in a system already burdened with pendency could lengthen the pre-summoning phase, although the Court’s view is that the cost is justified by the protection against unfounded prosecution. These are analytical observations, not findings of the Court. PRACTICAL IMPACT: WHAT CHANGES FOR COURTS, COMPLAINANTS AND THE ACCUSED For Magistrates, the ruling supplies a clear sequence to follow when a private complaint is presented. They examine the complainant and witnesses present on oath (unless exempted) and consider whether the complaint is liable to be dismissed under Section 226. Only then do they issue notice to the proposed accused and hear them before passing the formal order taking cognizance. For complainants and their counsel, the quality of the complaint and the sworn statements now matters more than ever, because they will be tested against the accused’s limited objection that no offence is disclosed on their face. Complaints that merely repeat conclusions without disclosing the ingredients of the offence are more likely to be stopped at the threshold. For the accused, the ruling clarifies what to expect and what to ask for. A notice received before the complainant has been examined can now be challenged as premature, and a cognizance order passed without a hearing is open to attack in light of the Supreme Court’s emphasis that non-compliance with the proviso is a fundamental defect. At the same time, the accused should prepare for a limited hearing and focus on the legal insufficiency of the complaint rather than disputed facts. For practitioners and students, the case offers a compact illustration of how the BNSS differs from the CrPC in both language and structure. It is likely to be cited frequently in petitions under Section 528 BNSS and in arguments before trial courts. CONCLUSION The Delhi High Court’s decision in Dr Rita Bakshi v. Seema Bajaj & Anr. gives concrete shape to one of the most important procedural reforms in the BNSS. It holds that the sworn examination of the complainant and witnesses, followed by a hearing of the accused, are steps that come before the Magistrate formally takes cognizance. Notice must be issued only after the examination and a prima facie screening under Section 226. By reading the word “while” and the first proviso to Section 223(1) together, and by insisting that the right of hearing be meaningful, the Division Bench has aligned the day-to-day working of Magistrate courts with the protective purpose of the new law. Readers should remember that this is a High Court ruling. It binds courts within Delhi, carries persuasive weight elsewhere, and remains open to further consideration by the Supreme Court. FREQUENTLY ASKED QUESTIONS Q1. What does Section 223 BNSS require before a Magistrate takes cognizance of a private complaint? Examination of the complainant and witnesses present on oath (unless exempted by statute) and an opportunity of hearing for the accused. The proviso makes the hearing mandatory before cognizance. Q2. When must the notice to the accused be issued? After the sworn examination and after the Magistrate forms a prima facie view that the complaint should not be dismissed under Section 226 BNSS, but before the formal order taking cognizance. Q3. Can the accused contest the facts at this stage? No. The right is limited to showing that, even if the complaint and statements are taken at face value, no offence is disclosed. Q4. Does this decision apply to complaints under the old CrPC? The ruling concerns Section 223 BNSS. The CrPC position under Sections 190 and 200 was different, with cognizance preceding the examination of the complainant. Q5. Is the ruling binding across India? It is a Delhi High Court Division Bench decision. It binds courts within its jurisdiction and is persuasive for others.