MP High Court: BNSS Section 223 Hearing Right Does Not Compel Complainant to Supply All Evidence Before Cognizance

The Jabalpur bench set aside a magistrate's order that dismissed a private complaint for non-supply of documentary and electronic evidence at the pre-cognizance stage, holding that the proviso to Section 223(1) BNSS requires only an opportunity of hearing, not full evidence disclosure.

The High Court of Madhya Pradesh at Jabalpur, on 8 May 2026, set aside an order of the Judicial Magistrate First Class, Mauganj, District Rewa, that had dismissed a private complaint solely because the complainant did not supply all documentary and electronic evidence to the proposed accused before cognizance was taken. Justice Himanshi Joshi, sitting singly, held that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) creates an obligation to afford a hearing to the accused before cognizance — it does not convert that procedural safeguard into a requirement to hand over the complainant's entire evidence at the threshold stage. The complaint was restored to its original number with directions to the Trial Court to decide all pending applications, including one under Section 94 BNSS, before proceeding further.

The Dispute Before the High Court

The petitioner, Vinay Prakash Singh @ Deepu Singh, is engaged in a contractual business of supplying gravel through Hyva dumpers to K.K. Construction Company. On 13 October 2023, he procured approximately 1,800 litres of diesel for operational requirements and stored it temporarily at his farmhouse because no nearby fuel station was available.

According to the petitioner, respondents Pushpendra Singh @ Dimple Singh and Deependra Singh, acting on business rivalry and prior enmity, pressured him to arrange an illegal advance of Rs. 1.00 crore and threatened to implicate him in criminal cases. He alleged that on the same evening at around 8:30 PM, the respondents along with other persons, including certain police officials, unlawfully entered his farmhouse, assaulted him, extended threats, and forcibly removed the stored diesel without any seizure memo or lawful authority. He specifically alleged misuse of official position by the respondent police officials and contended that threats were extended to suppress the matter.

The petitioner further alleged that FIR No. 679 dated 14 October 2023 was registered at Police Station Mauganj, alleging a robbery incident dated 11 October 2023, which he characterised as false, fabricated, and lodged as a counter-blast to shield the illegal acts committed against him. He contended that electronic evidence, including CCTV footage, contradicted the prosecution version and that no tanker was present at the alleged time and place.

On this basis, the petitioner filed a private complaint before the Trial Court for offences punishable under Sections 323, 294, 506, 392, 394, 194, and 211 read with Section 34 IPC. He also filed a pen drive containing electronic data along with the complaint as preliminary evidence.

The Magistrate's Orders Under Challenge

During the proceedings, the petitioner moved an application under Section 223(1) BNSS, contending that the proviso to that section requires only an opportunity of hearing to the accused prior to taking cognizance and does not mandate supply of the entire evidence at that stage. He argued that supplying complete evidence before cognizance would amount to premature disclosure and defeat the limited procedural safeguard the statute envisages.

The respondents opposed the application and sought its dismissal. By order dated 17 January 2026, the Magistrate rejected the petitioner's contention. The Magistrate held that unless all documentary and electronic evidence was supplied to the proposed accused, a reasonable opportunity of hearing could not be said to have been provided. The petitioner was directed to comply, failing which the complaint would stand dismissed.

The petitioner had also filed a separate application under Section 94 BNSS seeking summoning of crucial CCTV footage and other material evidence from third parties, which he said was essential for proper adjudication at the prima facie stage. That application remained pending.

On 22 January 2026, when the matter was taken up, the accused persons reiterated their demand for supply of all documents. Without deciding the pending Section 94 BNSS application and without granting further opportunity, the Magistrate dismissed the complaint solely for non-compliance with the 17 January 2026 direction. That dismissal order, along with the underlying direction of 17 January 2026, was challenged before the High Court under Section 528 BNSS.

The Legal Issue: Scope of Section 223(1) BNSS at the Pre-Cognizance Stage

The central question was whether the proviso to Section 223(1) BNSS, which requires that the accused be given an opportunity of hearing before a Magistrate takes cognizance on a private complaint, also obliges the complainant to supply all documentary and electronic evidence to the proposed accused at that threshold stage.

Counsel for the petitioner argued that the Trial Court misinterpreted the statutory mandate and converted a procedural safeguard into a substantive burden upon the complainant, thereby defeating legislative intent. He emphasised that the complaint involved serious allegations of criminal trespass, assault, robbery, extortion, and abuse of official power, and that dismissal on what he described as hyper-technical grounds amounted to denial of access to justice. He also pressed that the Section 94 BNSS application for summoning electronic evidence was pending and ought to have been decided before any adverse order was passed.

Counsel for the respondents supported the impugned order, contending that principles of natural justice require all material relied upon by the complainant to be supplied to the accused before proceedings continue. Since the petitioner had failed to comply with the 17 January 2026 direction, it was argued that the Trial Court had no option but to dismiss the complaint.

How the Bench Reasoned

Justice Himanshi Joshi framed the scope of interference under Section 528 BNSS as requiring examination of whether the impugned order suffered from illegality, perversity, or material irregularity.

The Court observed that the order dated 22 January 2026 reflected a dismissal solely on the ground of non-supply of documents pursuant to the earlier direction, with no discussion on merits and no consideration of the pending Section 94 BNSS application.

On the interpretation of Section 223(1) BNSS, the Court held that the proviso is intended to ensure that the accused is heard before cognizance is taken. However, such an opportunity of hearing does not automatically translate into an obligation to supply the entire evidence at the threshold stage, particularly when proceedings are at the stage of consideration of cognizance.

The Court identified three questions the Trial Court ought to have addressed before dismissing the complaint: whether partial compliance was sufficient, whether further time could be granted, and whether the pending application for summoning material evidence required adjudication prior to dismissal. The Court held that “mechanical dismissal of a complaint involving serious allegations, without examining the merits or procedural fairness in totality, results in miscarriage of justice.”

The Court also noted that the Magistrate's direction of 17 January 2026 — requiring supply of all documentary and electronic evidence as a precondition to a hearing — went beyond what the statute contemplated. Treating the proviso as imposing a full evidence-disclosure obligation at the pre-cognizance stage was, in the Court's view, a misreading of the legislative intent behind Section 223(1) BNSS.

Outcome

The petition was allowed. The order dated 22 January 2026 dismissing the private complaint was set aside. The complaint case was restored to its original number before the Trial Court.

The Trial Court was directed to proceed in accordance with law after deciding all pending applications, including the application under Section 94 BNSS for summoning electronic evidence, and after granting reasonable opportunity to all parties.

The High Court clarified that notice to the respondents had not been issued in the present proceedings because the complaint had been dismissed only for default and not on merits. The Court further clarified that the order does not adjudicate upon the rights of the parties, and the respondents shall have full opportunity to appear and contest the matter before the Trial Court.