Section 223 BNSS: Pre-Cognizance Hearing Guide (2026)
EduLaw EditorialAdvocate PlaybookA practical 2026 guide to Section 223(1) BNSS: when an accused must be heard before cognizance, objections to raise, exceptions, remedies and Supreme Court rulings.
EduLaw India's Legal Intelligence Platform Advocate Playbook 079 How to Challenge a Criminal Complaint Before Summons A practical advocate's guide to the first proviso to Section 223(1) BNSS: when the proposed accused must be heard, what can be argued, where the rule does not apply, and how to challenge cognizance taken without compliance. EduLaw Editorial Team Last reviewed: 16 August 2026 Approx. 14-minute read First proviso • Section 223(1) BNSS Opportunity of hearing before cognizance on a complaint No cognizance on a complaint without giving the proposed accused an opportunity of being heard. Complaint Hearing Cognizance Process Mandatory Quick answer Where Section 223(1) BNSS governs a complaint case, the proposed accused must receive a real opportunity of hearing before cognizance. In Parvinder Singh v. Directorate of Enforcement , 2026 INSC 519, the Supreme Court held this to be a mandatory substantive right connected with Article 21. Cognizance taken without compliance is void ab initio—but setting it aside is not an acquittal; the court may hear the accused and reconsider cognizance. 01 • The change Why Section 223 BNSS Changes Complaint Practice Under the old Section 200 CrPC framework, the accused ordinarily had no right to participate before process was issued. The first proviso to Section 223(1) BNSS introduces a striking change: before taking cognizance of an offence on a complaint, the Magistrate must give the accused an opportunity of being heard. The importance of the provision lies in its timing. Cognizance is not the trial, discharge or framing-of-charge stage. It is the stage at which the court judicially notices the alleged offence and decides whether criminal process should move forward. A complaint can carry reputational, financial and liberty consequences even before evidence is tested. Section 223 places a hearing at that threshold. The advocate's first question should no longer be only, “What offence is alleged?” It should also be, “By what route has the court been asked to take cognizance?” The statutory text is available on the official India Code page for Section 223 BNSS . 02 • Binding authority What the Supreme Court Has Now Settled Parvinder Singh v. Directorate of Enforcement , 2026 INSC 519 The Supreme Court held that the first proviso to Section 223(1) is substantive, not merely procedural; it forms part of the accused's fair-trial protection under Article 21; the word “shall” is mandatory; and cognizance taken without compliance is void ab initio. The factual detail is especially practical. The appellant was produced from judicial custody through video conference when cognizance was taken, yet had not been given the statutory opportunity of hearing. This demonstrates a crucial distinction: physical or virtual presence is not automatically a hearing . The record must show that the proposed accused was permitted to address the question of cognizance. The Court also rejected the argument that the accused had to separately establish prejudice. It treated the omission as an illegality vitiating the proceeding, not a curable irregularity. Read the official Supreme Court judgment in Parvinder Singh . Kushal Kumar Agarwal v. Directorate of Enforcement , 2025 SCC OnLine SC 1221 The Supreme Court had earlier set aside cognizance in a PMLA prosecution complaint because the accused was not heard under Section 223(1). Parvinder Singh reaffirmed that approach and confirmed that the complaint-case provisions in Sections 223 to 228 BNSS can apply to PMLA complaints. 03 • The applicability gate First Identify the Mode of Cognizance Section 210(1) BNSS recognises different routes by which a Magistrate may take cognizance. The Section 223 hearing attaches to cognizance on a complaint . It should not be mechanically invoked in every criminal proceeding. Proceeding Section 223 hearing? Practical reason Ordinary complaint under Section 210(1)(a) BNSS Generally yes The first proviso expressly governs cognizance on a complaint. Police report or charge-sheet under Section 210(1)(b) Not ordinarily A police report is a distinct statutory mode of cognizance. PMLA prosecution complaint Yes, where BNSS applies The Supreme Court found no inconsistent PMLA procedure excluding Sections 223–228. Section 138 NI Act complaint No pre-cognizance notice The Supreme Court has treated the special NI Act procedure as controlling. Section 12 DV Act application Not under Section 223 The Supreme Court held that a DV Act application is not a Section 223 complaint. The Section 138 NI Act exception In Sanjabij Tari v. Kishore S. Borcar , 2025 INSC 1158, the Supreme Court agreed with the Karnataka High Court that a Magistrate need not issue pre-cognizance summons under Section 223 BNSS in Section 138 NI Act complaints. The direction responds to the special summary framework and the enormous cheque-bounce docket. See the official judgment in Sanjabij Tari . The DV Act distinction In Shaurabh Kumar Tripathi v. Vidhi Rawal , 2025 INSC 734, the Court held that an application under Section 12 of the Protection of Women from Domestic Violence Act is completely different from a complaint under Section 200 CrPC or Section 223 BNSS. It follows the notice and relief structure of the DV Act itself. Read the official Supreme Court judgment . Special-statute rule Before relying on Section 223, read the special enactment with Sections 4 and 5 BNSS. Ask whether the special law creates an inconsistent or self-contained cognizance procedure. PMLA and Section 138 NI Act illustrate why labels alone are unsafe. 04 • Procedure The Correct Pre-Cognizance Workflow The exact administrative practice may vary between jurisdictions, and advocates should check the governing High Court rules and current local precedent. The defensible file workflow is: Identify the complaint. Confirm that the court is proceeding on a complaint and not a police report. Obtain the complete complaint material. Secure the complaint, annexures, verification or sworn statement, and each order sheet. Separate hearing notice from trial process. A notice offering a Section 223 hearing is not the same as process issued after cognizance under Section 227. File a focused objection. Confine it to threshold defects that the court can decide without testing defence evidence. Ensure actual hearing. The order sheet should record that counsel was heard on cognizance; presence alone is insufficient. Seek a reasoned decision. If the complaint lacks sufficient ground, request dismissal under Section 226; if cognizance is taken, preserve the objection for challenge. The most common early mistake is to treat the Section 223 notice as if the accused has already been summoned for trial. The entire point of the proviso is that the hearing comes before cognizance. Process under Section 227 follows only after the court decides there is sufficient ground to proceed. 05 • Daily file work The Five-Document Audit Before You Argue Complaint and every annexure relied upon at the threshold. Complainant's verification or sworn statement, if recorded. Complete chronological order sheets—not merely the latest order. The order expressly taking cognizance. Any summons, warrant or process order issued thereafter. Mark four dates on the first page of your brief: complaint filed → judicial application of mind → accused heard → cognizance taken . This chronology matters particularly for the transition from the CrPC to the BNSS. The Section 531 transition trap Section 531(2)(a) preserves a pending appeal, application, trial, inquiry or investigation under the CrPC. But in Parvinder Singh , the PMLA complaint had been filed before 1 July 2024 and cognizance was taken after the BNSS commenced. The Supreme Court held that merely registering the complaint and posting it for cognizance were ministerial acts; they did not amount to an “inquiry” involving judicial application of mind. The substantive Section 223 protection therefore applied. Do not decide the transition question from the filing date alone. Read every pre-1 July 2024 order to determine whether a legally relevant proceeding had actually commenced. 06 • What to argue Six Threshold Objections That Belong Here The Supreme Court has settled the existence and mandatory character of the hearing, but the precise outer limits of that hearing will continue to develop. The safest advocacy is to focus on defects visible from the complaint, the documents relied upon by the complainant, and the governing statute. Jurisdiction: the complaint does not disclose the territorial or subject-matter facts necessary for that court to act. Limitation or prematurity: the complaint is time-barred, filed before the cause of action matured, or lacks a legally sufficient condonation foundation. Authority and locus: the person filing for a company, institution or statutory authority lacks the pleaded authorisation required by law. Sanction or statutory bar: a mandatory sanction, prior approval, notice or other condition precedent is absent. Missing offence ingredient: even if every pleaded allegation is accepted, one or more essential ingredients of the alleged offence are not disclosed. Vicarious liability: the complaint names directors, partners or office-bearers without pleading a specific role or the statutory basis for making one person's act another's criminal liability. The best courtroom formulation “I am not asking the Court to test defence evidence. Even if the complaint is accepted as filed, it does not plead the statutory ingredient identified at paragraph __ of this note.” 07 • What not to argue Do Not Convert the Hearing Into a Mini-Trial A long factual reply can dilute a strong legal defect. Avoid building the hearing around an alibi, disputed correspondence, witness credibility, handwriting disputes, repayment evidence, alleged misuse of a document, or a competing factual narrative requiring proof. Likewise, “this is a civil dispute” is not a complete objection. Civil and criminal consequences can coexist. The useful submission is narrower: identify the criminal ingredient that remains absent even after the complaint is read at its highest. If an external document is genuinely incontrovertible or comes from an unimpeachable statutory record, seek specific permission to rely on it and explain why no fact-finding is required. Do not assume an unrestricted right to lead defence material at this stage; the scope of Section 223 hearing should be checked against current jurisdiction-specific precedent. 08 • Drafting A Court-Usable Written Objection A Section 223 note should normally be short enough for the court to use while passing the cognizance order. Organise it by legal issue, not by the client's entire history. Suggested structure Applicability: State why the case is instituted on a complaint and why Section 223 governs it. Undisputed chronology: Complaint, verification, hearing notice and proposed cognizance dates. Offence-wise analysis: Essential ingredient → relevant complaint paragraph → precise omission. Statutory bar: Jurisdiction, limitation, sanction, authorisation or special-law restriction. Prayer: Decline cognizance and dismiss under Section 226, or decide each threshold objection before taking cognizance. Where multiple accused are named, prepare a separate role-and-ingredient chart. A collective paragraph stating that “all accused acted together” may not answer a statutory requirement for a specific role or vicarious-liability foundation. 09 • Defective cognizance If Cognizance Has Already Been Taken Act promptly and preserve the record. Obtain certified or authenticated copies of the complaint, verification, every order sheet, the cognizance order and the process issued. Determine whether the court merely recorded the accused's presence or actually heard submissions before cognizance. Raise the violation at the first available opportunity. Delay can complicate the procedural posture even where the original defect is serious. Challenge the correct order. Target the cognizance order and consequential process, not the merits of the entire trial. Select the competent forum carefully. Revision, inherent jurisdiction under Section 528 BNSS, or another remedy may depend on the order, statute and binding local precedent. Frame the relief accurately. Ask that the unlawful cognizance be set aside and the matter restored for a Section 223 hearing and fresh decision. Important limitation A successful Section 223 challenge does not result in acquittal. It removes an unlawful cognizance order. After hearing the proposed accused, the court may still take cognizance if the complaint legally warrants it. 10 • The other side of the file Checklist for Complainant's Counsel Section 223 is not only a defence provision. A complainant's advocate should design the file to survive the pre-cognizance hearing: Plead each offence ingredient in separately identifiable paragraphs. Establish territorial jurisdiction from pleaded facts, not the prayer clause. Place corporate or institutional authorisation on record. Address limitation, sanction and statutory prerequisites expressly. For each proposed accused, plead the act, role and legal basis for liability. Distinguish the Section 223 hearing notice from post-cognizance process. Answer the proposed accused's threshold objections without inviting a factual trial. A properly structured complaint helps the court decide cognizance without having to reconstruct missing ingredients from annexures. FAQ • Direct answers Frequently Asked Questions Is hearing the accused mandatory before cognizance under Section 223 BNSS? Yes, where the first proviso to Section 223(1) governs the complaint. Parvinder Singh holds that the right is substantive and mandatory and that cognizance taken without compliance is void ab initio. Is presence of the accused in court enough? No. The record should show that the accused received an opportunity to address cognizance. In Parvinder Singh , production through video conference did not cure the absence of a hearing. Does Section 223 apply to every charge-sheet? No. The first proviso concerns cognizance on a complaint. A police report is a separate mode under Section 210(1)(b) BNSS. Does the proposed accused have a right to cross-examine the complainant? Section 223 grants an opportunity of hearing, not a trial. The safer position is to make threshold legal submissions without seeking cross-examination or adjudication of disputed defence facts, subject to binding precedent in the relevant jurisdiction. Can the accused rely on defence documents? Do not assume a general right to lead defence evidence at this stage. Focus on the complaint and governing law. If relying on an incontrovertible public or statutory record, explain why it can be considered without factual adjudication and check local precedent. Does Section 223 apply to Section 138 NI Act complaints? No pre-cognizance notice under Section 223 is required. The Supreme Court settled this in Sanjabij Tari , 2025 INSC 1158. Does it apply to PMLA prosecution complaints? Yes, where the BNSS governs the proceeding. Kushal Kumar Agarwal and Parvinder Singh hold that the relevant complaint-case provisions apply because the PMLA contains no inconsistent procedure displacing them. Does setting aside cognizance end the complaint? Not necessarily. The ordinary consequence is a fresh hearing and reconsideration of cognizance. It is not an acquittal on the merits. Primary materials Official Sources and Further Reading Section 223, Bharatiya Nagarik Suraksha Sanhita, 2023 — India Code Parvinder Singh v. Directorate of Enforcement , 2026 INSC 519 — Supreme Court of India Sanjabij Tari v. Kishore S. Borcar , 2025 INSC 1158 — Supreme Court of India Shaurabh Kumar Tripathi v. Vidhi Rawal , 2025 INSC 734 — Supreme Court of India This article is for legal education and professional discussion. Procedure can vary with the governing special statute, High Court precedent and local rules. Verify the current position before filing or advising in a live matter. Build Procedure Into Strategy Explore EduLaw's Advocate Playbooks, litigation notes and practical drafting resources. Explore EduLaw Inside this guide Why Section 223 matters Supreme Court rule Where it applies Correct workflow Five-document audit Threshold objections Avoiding a mini-trial Drafting format Cognizance already taken Complainant checklist Frequently asked questions Legally reviewed against primary materials available up to 16 August 2026. © 2026 EduLaw. All rights reserved. Legal education, not case-specific advice.