Section 223 notice to the accused follows pre-summoning evidence, Delhi High Court Bench rules
Justices Navin Chawla and Ravinder Dudeja answer a reference, holding that examining the complainant and hearing the accused both precede cognizance, with notice issuing only after the evidence.
The Bharatiya Nagarik Suraksha Sanhita, 2023 did something the Code of Criminal Procedure never did: it told Magistrates that no cognizance of an offence may be taken on a private complaint without first hearing the person accused in it. Trial courts in Delhi have been reading that proviso two ways, some issuing notice the moment a complaint is filed. A Division Bench of the Delhi High Court has now settled the sequence. Answering a reference made by a Single Judge, Justices Navin Chawla and Ravinder Dudeja held that the Magistrate must first examine the complainant and the witnesses present on oath, then form a prima facie view that the complaint does not deserve dismissal, and only then issue notice to the accused — with the formal decision on cognizance coming after that hearing.
Two complaints, two Magistrates, two different moments
The reference arose from a judgment of 18 March 2026 by a Single Judge in a petition filed by Dr Rita Bakshi. She had challenged an order of 21 January 2025 by a Judicial Magistrate First Class in the South District, Saket Courts, in a complaint filed against her and a private company. The Magistrate had directed notice to issue to her under Section 223 of the BNSS, giving her an opportunity to be heard and to appear, before recording the pre-summoning evidence in the complaint.
A second petition was tagged to the reference by an order of 24 April 2026 because it raised the same question. There, two proposed accused challenged a final order of 7 April 2026 by an Additional Sessions Judge in the South-East District, which had upheld a Magistrate's order of 25 August 2025 directing notice to issue upon receipt of the private complaint.
In both, therefore, the Magistrate had reached for the accused at the earliest possible moment — on the strength of the complaint alone.
The two questions referred
The Single Judge framed the issue in two parts. First, at what stage can a Magistrate be said to have taken cognizance of an offence on a private complaint under the BNSS, and does the expression “while taking cognizance” in Section 223(1) mean that examining the complainant and witnesses on oath is a step before cognizance is taken? Second, at what stage must notice issue under the first proviso to Section 223(1) — on perusal of the complaint but before the statements are recorded, or after recording them but before a formal decision on cognizance?
The reference was not made in a vacuum. Two Single Judges of the same Court had already held, in Neeti Sharma v. Saranjit Singh and in Brand Protectors India Pvt. Ltd. v. Anil Kumar, that notice under the proviso follows the recording of the statements of the complainant and witnesses. The Karnataka High Court had taken the same view in Basanagouda R. Patil v. Shivananda S. Patil, which the Allahabad High Court followed in Prateek Agarwal v. State of U.P. and the Kerala High Court in Suby Antony. Judicial discipline on a question already decided by coordinate Benches led the Single Judge to refer it rather than decide it.
The Single Judge's own doubt turned on a single word. The introduction of “while” into Section 223(1), the order observed, may have led to the reading that examination of the complainant and witnesses forms part of, or precedes, the taking of cognizance. Unable to agree with the two earlier coordinate Benches, the Single Judge placed the questions before a larger Bench.
The argument from the scheme of Chapter XVI
Mr Pavan Narang, appearing for the petitioners in the second matter, built his case on the sequence the Sanhita itself sets out. Reading Sections 210, 223(1), 225, 226 and 227 together, he submitted that on presentation of a complaint the Magistrate must first examine the complainant and any witnesses present on oath and reduce the substance to writing, a stage at which the proposed accused has no part to play. The Magistrate may then postpone the issue of process under Section 225 and either inquire himself or direct an investigation, and may dismiss the complaint under Section 226 if he finds no ground to proceed.
Both those powers, he argued, are exercisable without notice to the accused, which means an ill-founded complaint can end without the proposed accused ever learning of it. Requiring notice at the outset would negate the power to dismiss under Section 226 and the power of further inquiry under Section 225. Only once a complaint survives that scrutiny does the question of hearing the accused arise at all, after which cognizance is formally taken under Section 210 and process issued under Section 227.
He added a point about the quality of the hearing. The proviso is meant to be effective and meaningful rather than a formality, and notice served on the bare complaint would make the accused answer unverified pleadings, reducing the safeguard to an empty ritual. At that preliminary stage even the identity or precise role of each proposed accused may be unclear; it is the examination of the complainant and witnesses that fixes the true scope of the allegations and the persons genuinely to be proceeded against. The proviso, he submitted, is a safeguard unknown to Section 200 of the Cr.P.C., intended to protect against false implication and unwarranted harassment. Mr Rakesh Malhotra, for Dr Bakshi, adopted those submissions and added that cognizance commences when a Magistrate first takes notice of an offence, as the first stage of initiation of proceedings, relying on Ajit Kumar Palit v. State of West Bengal, Jamuna Singh, Manharbhai Muljibhai Kakadia v. Shaileshbhai Patel and Manju Surana.
Beyond the Delhi, Karnataka, Allahabad and Kerala decisions already before the referring Judge, counsel placed reliance on Bhupendra Chaudhary v. Arun Chaudhary, on the Bombay High Court's decision in Shashidhar Jagdishan v. State of Maharashtra and on Rakesh Kumar Chaturvedi v. State of U.P. — a body of High Court authority that had largely settled on the same sequence, leaving the Delhi position as the outlier to be resolved.
What the Code did, and what the Sanhita changed
Section 223 of the BNSS retains much of the procedure in Section 200 of the Cr.P.C. so far as examination of the complainant and witnesses goes. Two things are new, and the Bench treated them as the hinge of the case.
The first is the relocation of cognizance itself, and the Bench located the change in the word that had troubled the Single Judge. The use of “while” in Section 223 is temporal: when a Magistrate having jurisdiction is taking cognizance of an offence on a complaint, that Magistrate shall examine the complainant and the witnesses present on oath, and the substance is to be reduced to writing and signed by the complainant, the witnesses and the Magistrate. By choosing that word, the Bench held, the legislature made the examination a part of the process of taking cognizance rather than something that follows it.
An argument from the architecture of the statute was rejected. Section 210 sits in Chapter XV of the BNSS and Section 223 in Chapter XVI, mirroring the placement of Sections 190 and 200 of the Cr.P.C. in Chapters XIV and XV. That correspondence, the Bench held, cannot determine the stage at which the provisions operate. A statute must be read as a whole and harmoniously, not in silos — a principle the Bench drew from the Constitution Bench decision in Prakash Kumar v. State of Gujarat, which in turn adopts the observation in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. that interpretation depends on both text and context, and the rule in Anwar Hasan Khan v. Mohd. Shaji that construction should avoid conflict between provisions.
Read that way, Section 223 makes a vital change to the earlier position. The precedents the Single Judge had been pointed to explained the older rule, under which cognizance preceded the examination, and overlooked what the legislature had done. On the language of the Sanhita, examination of the complainant and the witnesses present on oath, unless the statute exempts it, and the hearing of the accused are both steps that come before cognizance.
The second is the first proviso to Section 223(1), which says that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. It was not disputed before the Bench that this makes notice to the accused mandatory, unlike under the Cr.P.C. The dispute was only about when.
A right created to meet a specific mischief
To fix the stage, the Bench traced what the accused could and could not do under the old regime. Under the scheme of Chapter XVI of the Cr.P.C., an accused had no right to be heard when the Magistrate took cognizance, no right to take part in the proceedings, and the Magistrate had no jurisdiction to permit it — the position in Chandra Deo Singh. At the same time, the Supreme Court recognised that summoning an accused is a serious matter and that criminal process cannot be set in motion as a matter of course, and carved out stringent and narrow grounds on which an order taking cognizance or issuing process could be challenged, as in State of Haryana v. Bhajan Lal and Pepsi Foods Ltd.
The Bench then set out the current statement of those grounds from Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh. At the stage of issuing process the Magistrate is concerned with the allegations in the complaint and the evidence led in support, and need only be prima facie satisfied that there are sufficient grounds for proceeding; the inquiry is limited to ascertaining the truth or falsehood of the allegations, on the complainant's material, purely from the complainant's point of view and without adverting to any defence. An order issuing process can nevertheless be set aside where the allegations taken at face value make out no case or the complaint does not disclose the essential ingredients of the offence; where they are patently absurd and inherently improbable; where the discretion has been exercised capriciously on no evidence or irrelevant material; or where the complaint suffers from a fundamental legal defect such as want of sanction.
Reading the proviso against that background, the Bench held that the legislature took note of a position in which an accused had no right to be heard at the cognizance stage yet had limited grounds on which to attack the order afterwards, and formally vested the right to be heard at that very stage. The proviso addresses the mischief of criminal process being started against a person, to his serious prejudice, without hearing him. It is a remedial provision beneficial to the accused, under which he can place before the Magistrate the narrow grounds the courts have already recognised as reasons for not taking cognizance.
From that characterisation the timing followed. Such a provision must be given full force and made effective, and the only way to make it effective is to issue the notice after the Magistrate has examined the complainant and the witnesses. That gives the accused a fair and proper opportunity of being heard on whether cognizance should be taken at all. Notice issued earlier would be a futile exercise and would restrict the very right the legislature conferred; the accused would be answering bare, unverified pleadings. The Bench invoked the mischief rule as restated by the Supreme Court in Dr. Lokesh B.H. v. State of Karnataka, that a court must adopt the construction which suppresses the mischief and advances the remedy.
The sequence the Bench laid down
On the first question, the Bench held that a Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless exempted by the statute, and after giving the accused an opportunity to be heard. Under Section 223(1), both the examination and the hearing are steps prior to the taking of cognizance.
On the second, the Magistrate must issue notice to the accused 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 of the BNSS but that cognizance may deserve to be taken. The formal decision to take cognizance can be taken only after granting the accused an opportunity of being heard.
The practical effect is a four-step order of business on a private complaint: the complainant and any witnesses are examined on oath; the Magistrate forms a prima facie view on whether the complaint survives Section 226; notice then goes to the accused and he is heard; and only then is cognizance formally taken. Orders in both the petitions before the Bench had compressed that sequence by reaching the accused first.
Order
The Bench answered the two questions referred by the Single Judge in the terms set out above. Subject to the orders of the Chief Justice, it directed that the two petitions be listed before the Roster Bench on 28 October 2026, where the individual orders under challenge will be considered. It further directed that a copy of the judgment be communicated to the referral court for information. The judgment was authored by Justice Navin Chawla.