Before Cognizance, Hear the Accused: Section 223 BNSS, Supreme Court Rulings and the Limits of the Right

The central answer

The first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 creates an express opportunity of hearing before cognizance in the complaint procedure to which it applies. It is not merely a discretionary courtesy. In applicable PMLA complaints, the Supreme Court has enforced that requirement and subsequently explained its mandatory character and constitutional significance. However, a hearing before cognizance is not a universal condition for every criminal proceeding: the route by which the court is approached, the governing special statute, and the transitional position all matter. The Supreme Court has expressly carved out Section 138 Negotiable Instruments Act complaints from this requirement. [Source 1]; [Source 2]; [Source 3].

The essential distinction is between the existence of the right and the mechanics of exercising it. Questions about defence evidence, supplementary complaints, and the exact sequence of the complainant’s examination require greater caution than the basic proposition that an applicable statutory hearing cannot be omitted.

The statutory architecture

The first proviso states:

“Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:”

Section 223 is situated in the complaint chapter. Section 210 distinguishes complaint-based cognizance from cognizance on a police report. The proviso should not be lifted out of that setting and treated as an automatic hearing before every police-report cognizance.

The second proviso to Section 223(1) exempts specified complaints, including qualifying written official complaints, from examination of the complainant and witnesses. That is a different safeguard from the accused’s hearing. Section 223(2), in turn, concerns complaints against public servants for alleged official-duty offences and contains additional requirements.

Useful procedural cross-references are:

Section 190 CrPC → Section 210 BNSS: Cognizance by Magistrates.

Section 200 CrPC → Section 223 BNSS: Examination of complainant; new hearing proviso.

Section 202 CrPC → Section 225 BNSS: Postponement of process and inquiry.

Section 203 CrPC → Section 226 BNSS: Dismissal of complaint.

Section 204 CrPC → Section 227 BNSS: Issue of process.

Section 205 CrPC → Section 228 BNSS: Dispensing with personal attendance.

Section 482 CrPC → Section 528 BNSS: High Court’s inherent powers. These are functional cross-references, not a representation that the old and new provisions are identical. [Source 1].

Cognizance is not the same as filing, numbering or summons

In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492, Criminal Appeal 175/2007, decided on 25 January 2008, the Supreme Court explained cognizance through judicial application of mind to the suspected offence. It distinguished cognizance from the later issue of process. The official judgment’s paragraph 12 is a useful starting point.

That distinction remains important: a filing receipt does not establish that cognizance has occurred, and the later date of summons does not necessarily establish when cognizance occurred. The order sheet must be examined. But an older explanation of cognizance cannot be used to erase a hearing requirement subsequently enacted by Parliament. [Source 4].

The Supreme Court’s direct BNSS decisions

Kushal Kumar Agarwal: what happened and what the Supreme Court decided

In Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 INSC 760, decided on 9 May 2025, the Supreme Court set aside cognizance because Agarwal had not been heard—not because it found him innocent.

ED filed its prosecution complaint under Section 44(1)(b) PMLA on 2 August 2024, after BNSS commenced. The Special Judge took cognizance without giving Agarwal an opportunity of hearing.

Relying on Yash Tuteja and Tarsem Lal, the Court applied ordinary complaint procedure. Section 223(1) BNSS prohibited cognizance without the accused’s hearing. The omission alone justified setting aside the order.

Agarwal was directed to appear before the Special Court on 14 July 2025 for that hearing, without requiring another notice.

Parvinder Singh: why the accused had to be heard

In Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, decided on 19 May 2026, the Supreme Court examined a complaint filed before BNSS began.

ED arrested Singh on 27 April 2024 and filed its PMLA complaint on 24 June. The court numbered it and postponed consideration. On 2 July—after BNSS commenced on 1 July—it took cognizance without hearing Singh, although he was produced from custody.

The Uttarakhand High Court upheld cognizance because the proceedings predated BNSS.

Merely numbering the complaint and fixing dates did not begin a judicial inquiry. Therefore, that administrative activity did not preserve the old CrPC procedure under Section 531(2)(a) BNSS.

Section 223(1)’s hearing requirement applied. It protected a fair trial under Article 21; the court could not skip it merely because the allegations were serious. Singh did not have to prove additional harm: denying this mandatory hearing invalidated cognizance.

The Supreme Court set aside the High Court judgment and cognizance order, directing the Special Court to hear Singh and reconsider cognizance within eight weeks of receiving the judgment. [Source 5, paragraphs 3–8 and 27–40].

Neville Tuli: the Bombay High Court applies the safeguard to SEBI

In Neville Tuli v. Securities and Exchange Board of India, Writ Petition 5242/2025, decided on 15 July 2026, N.J. Jamadar J. considered a prosecution under Section 24(2) SEBI Act.

The Bombay High Court distinguished who may institute a prosecution from how a court takes cognizance. Section 26’s authorised-complaint requirement did not prescribe a contrary hearing procedure. Constitution of a Special Court under Section 26A did not itself exclude ordinary safeguards; Section 26D applied criminal procedure unless otherwise provided.

Finding no relevant contrary intention in the SEBI scheme, the Court applied the PMLA reasoning in Kushal Kumar Agarwal and Parvinder Singh. The NI Act exception did not establish a general exemption for special enactments.

The resulting finding was categorical: the Special Court could not take cognizance without the Section 223 opportunity. Both cognizance and issuance of process were set aside solely for that defect, with fresh consideration after hearing directed. The Court expressly left the prosecution’s merits open. This is a Bombay High Court holding, not a Supreme Court determination specifically concerning SEBI. [Source 8, paragraphs 26–35 and 42–54].

Cheque complaints: Ashok v. Fayaz Aahmad and Sanjabij Tari

What the Karnataka High Court decided

The case was Ashok v. Fayaz Aahmad, 2025 SCC OnLine Kar 490; 2025:KHC-D:6966, Criminal Petition 101514/2025, decided on 28 April 2025 by Shivashankar Amarannavar J. at the Karnataka High Court’s Dharwad Bench.

Ashok challenged cheque-dishonour proceedings because the Magistrate had taken cognizance without first giving him the hearing contemplated by Section 223(1) BNSS.

The High Court rejected that challenge. It held that the Negotiable Instruments Act prescribes a special procedure for Section 138 complaints. Reading Section 5 BNSS, which preserves special procedures, with Section 143 NI Act, it concluded that the first proviso to Section 223(1) BNSS did not require a pre-cognizance hearing in these cheque complaints. The Magistrate had therefore committed no error by proceeding without that notice, and Ashok’s petition was dismissed. [Source 12, paragraphs 19 and 23–24].

What the Supreme Court subsequently said

In Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, decided on 25 September 2025, the Supreme Court expressly agreed with Ashok and directed that Section 223 BNSS summons were not required at the pre-cognizance stage in Section 138 complaints. [Source 3, paragraph 36(E)].

In simple terms, the Magistrate need not first summon the cheque-dishonour accused merely to hear objections before taking cognizance. This does not remove the statutory demand notice or the later summons to answer the complaint. It is not a general exemption for every special statute.

Brand Protectors: statements first, accused’s hearing next

In Brand Protectors India Pvt. Ltd. v. Anil Kumar, 2025:DHC:6044, CRL.M.C. 1495/2025, decided on 25 July 2025, Neena Bansal Krishna J. addressed the sequence in a private complaint.

The revisional court had set aside premature cognizance while preserving the complainant’s evidence already recorded. The challenge raised whether the proposed accused should have been heard before that recording.

The Delhi High Court upheld the sequence of recording the complainant and witnesses first, then providing the accused an opportunity before cognizance. The hearing should be informed by the complaint and recorded statements, rather than reduced to an empty ritual. The Court did not make the initial examination an occasion for accused-led cross-examination.

It upheld the revisional order and dismissed the petition: the recorded statements did not have to be discarded merely because the earlier cognizance order was defective. This is an actual procedural outcome, not simply a general endorsement of natural justice. It must, however, be read with the subsequent reference below. [Source 9, paragraphs 26–29 and 36–38].

Rita Bakshi: should the complainant’s statement come before the accused’s hearing?

In Dr Rita Bakshi v. Seema Bajaj, CRL.M.C. 2551/2025, decided on 18 March 2026, Seema Bajaj had filed a complaint alleging cheating and conspiracy against eight people, including Rita Bakshi. The Magistrate issued notice asking the accused to appear before recording the complainant’s sworn statement. Bakshi challenged that order. She argued that the statement should be recorded first, allowing her to understand and answer that material before the court took cognizance. Earlier Delhi decisions supported recording statements first. But older Supreme Court decisions treated that recording as occurring after cognizance. Justice Swarana Kanta Sharma identified this conflict and asked a larger bench—more judges sitting together—to settle when cognizance occurs and when the accused must receive notice. During the High Court proceedings, the complainant’s statement had already been recorded under an interim order. Bakshi no longer objected to attending the hearing afterwards. The court therefore allowed the proceedings to continue, subject to the larger bench’s orders. It did not dismiss the complaint or finally settle the disputed sequence. [Source 10, paragraphs 1–7 and 27–36]. A useful way to understand this preliminary hearing is that the accused can explain why the complaint should not proceed against them. This is a practical explanation, not a court-prescribed checklist. For example, a lawyer may point out that the complaint does not describe the acts needed to constitute the alleged offence, that the court lacks authority to deal with it, or that a legally required permission is missing. Those are examples—not findings about Bakshi’s conduct or the merits of Bajaj’s complaint. This stage should not be confused with a full trial. A hearing does not automatically entitle the accused to call witnesses or cross-examine everyone. The permitted scope of participation must be assessed under the applicable law and court orders.

Investigation applications and public servants are distinct issues

Om Prakash Ambadkar v. State of Maharashtra, 2025 INSC 139, Criminal Appeal 352/2020, decided on 16 January 2025, discusses the new safeguards concerning investigation directions in paragraphs 28–35. Those observations concern Section 175 BNSS, including the requirements involving police submissions and official-duty allegations against public servants. They are not a direct holding that every prospective accused has a Section 223 hearing before an FIR can be registered. [Source 11].

Counsel should therefore first identify the order sought: an investigation direction, cognizance on a complaint, cognizance on a police report, or process after cognizance. Calling all four a “summoning stage” obscures the legal question. For a public-servant case, additionally distinguish a complaint filed by the official from a complaint alleging misconduct against the official; their statutory consequences are not interchangeable.

Conclusion

The central principle is that, where Section 223(1) BNSS applies, the accused must have an opportunity to be heard before the court takes cognizance. In Kushal Kumar Agarwal and Parvinder Singh, the Supreme Court set aside cognizance taken without that hearing. Parvinder Singh also makes clear that serious allegations cannot justify ignoring this safeguard. The Bombay High Court applied the requirement to SEBI complaints in Neville Tuli. [Sources 2, 5 and 8].

Cheque-dishonour complaints under Section 138 NI Act stand differently. In Sanjabij Tari, the Supreme Court agreed with the Karnataka High Court’s decision in Ashok and directed that a separate pre-cognizance summons under Section 223 BNSS was unnecessary in those complaints. [Source 3, paragraph 36(E)].

For ordinary private complaints, the timing of the hearing requires separate attention. Brand Protectors placed it after the complainant’s sworn statement. Rita Bakshi referred the disagreement over that sequence to a larger bench; it did not remove the right to be heard. [Sources 9 and 10].

The practical distinction is therefore between whether a hearing is required and when it must occur. Courts must apply the procedure governing the particular complaint, rather than assume that every criminal case follows the same rule.

Disclaimer

This article provides general legal information as at 10 September 2026, not advice on a particular case. The applicable procedure and current judicial position should be checked against the facts and jurisdiction before action.

Sources

1. Bharatiya Nagarik Suraksha Sanhita, 2023 — Sections 210, 223–228, 528 and 531. https://www.mha.gov.in/sites/default/files/2024-04/250884_2_english_01042024.pdf

2. Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 INSC 760, 9 May 2025, PDF pages 2–5. https://api.sci.gov.in/supremecourt/2025/4952/4952_2025_4_50_61678_Judgement_09-May-2025.pdf

3. Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, 25 September 2025, paragraph 36(E). https://api.sci.gov.in/supremecourt/2009/31112/31112_2009_12_1501_64549_Judgement_25-Sep-2025.pdf

4. S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492, 25 January 2008, official PDF paragraph 12. https://api.sci.gov.in/jonew/judis/30187.pdf

5. Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, 19 May 2026, paragraphs 27–40. https://api.sci.gov.in/supremecourt/2025/44465/44465_2025_5_1501_71414_Judgement_19-May-2026.pdf

6. Yash Tuteja v. Union of India, 2024 INSC 301, 8 April 2024, paragraph 6. https://api.sci.gov.in/supremecourt/2023/14771/14771_2023_8_68_52049_Judgement_08-Apr-2024.pdf

7. Tarsem Lal v. Directorate of Enforcement, 2024 INSC 434, 16 May 2024, official PDF paragraphs 23–24. https://api.sci.gov.in/supremecourt/2023/53731/53731_2023_7_1502_53220_Judgement_16-May-2024.pdf

8. Neville Tuli v. SEBI, Writ Petition 5242/2025, Bombay High Court, 15 July 2026, paragraphs 26–35 and 42–54. https://www.livelaw.in/pdf_upload/2026/07/19/neville-tuli-v-securities-and-exchange-board-of-india-anr-687886.pdf

9. Brand Protectors India Pvt. Ltd. v. Anil Kumar, 2025:DHC:6044, 25 July 2025, paragraphs 26–29 and 36–38. https://www.verdictum.in/pdf_upload/nbk25072025crlmm14952025130648-1731839.pdf

10. Dr Rita Bakshi v. Seema Bajaj, CRL.M.C. 2551/2025, Delhi High Court, 18 March 2026, paragraphs 30–36. https://delhihighcourt.nic.in/app/showFileJudgment/SKS18032026CRLMM25512025_181233.pdf

11. Om Prakash Ambadkar v. State of Maharashtra, 2025 INSC 139, 16 January 2025, paragraphs 28–35. https://api.sci.gov.in/supremecourt/2019/42365/42365_2019_14_105_58524_Judgement_16-Jan-2025.pdf

12. Ashok v. Fayaz Aahmad, 2025:KHC-D:6966; 2025 SCC OnLine Kar 490, Karnataka High Court, Criminal Petition 101514/2025, 28 April 2025, paragraphs 19 and 23–24. https://indiankanoon.org/doc/178062552/

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