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 v. Directorate of Enforcement

2025 INSC 760; Criminal Appeal 2749/2025; 9 May 2025; Abhay S. Oka and Ujjal Bhuyan JJ.

The prosecution complaint under Section 44(1)(b) PMLA was filed on 2 August 2024. The Court applied the new complaint procedure, set aside cognizance taken without the required hearing, and directed reconsideration after hearing the appellant.

Crucially, the Court left open the prosecution’s submissions concerning the admissibility of defence material and whether another hearing is necessary on further or supplementary complaints. Those submissions must not be reported as holdings accepting either restriction. The official judgment is unnumbered; PDF pages 2–5 contain the relevant reasoning and directions. [Source 2].

Parvinder Singh v. Directorate of Enforcement

2026 INSC 519; arising from SLP (Crl.) 12055/2025; 19 May 2026; M.M. Sundresh and Nongmeikapam Kotiswar Singh JJ.

Paragraph 27 treats the proviso as mandatory and as conferring a substantive fair-trial protection connected with Article 21. Paragraphs 30–33 reaffirm the application of complaint procedure to PMLA and reject the request to reconsider Kushal Kumar Agarwal.

The complaint had been filed before 1 July 2024, but the earlier numbering and adjournments did not constitute the judicial inquiry required for the asserted savings argument. Paragraphs 34–36 are therefore important when examining transitional files. Paragraph 37 distinguishes the omission from a curable procedural irregularity; separate proof of prejudice was not required. The Court set aside cognizance and ordered a fresh hearing, not an acquittal: paragraphs 39–40. [Source 5].

Why the rule applies to ED prosecution complaints

The doctrinal foundation predates BNSS. In Yash Tuteja v. Union of India, 2024 INSC 301, (2024) 8 SCC 465, decided on 8 April 2024, paragraph 6 explains that the complaint-processing provisions of Sections 200–204 CrPC apply in PMLA proceedings. A Special Court is not relieved of judicial screening merely because ED has filed the complaint. That case is a foundation for the later BNSS decisions, not itself a decision interpreting the new hearing proviso. [Source 6].

Tarsem Lal v. Directorate of Enforcement, 2024 INSC 434, (2024) 7 SCC 61, decided on 16 May 2024, likewise applies the complaint procedure. Its conclusions appear in paragraph 23 of the official PDF, although numbering in reported versions differs. The decision separately addresses appearance on summons, custody and arrest following cognizance. An accused who had not been arrested during investigation is not automatically in custody merely by appearing pursuant to summons; the judgment’s conditions must be retained. Its restrictions on ED’s arrest power after cognizance concerning persons already arraigned cannot be converted into blanket protection from arrest before cognizance. [Source 7].

For practice, keep three applications analytically separate: the request for the statutory hearing, the challenge to the sufficiency or maintainability of the complaint, and any request concerning arrest or bail. Success on one does not automatically decide the others.

SEBI complaints: the Bombay High Court decision

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

The judgment distinguishes the statutory authority to institute a complaint from the procedure for taking cognizance. It examines Sections 26, 26A and 26D rather than assuming that designation as a Special Court excludes the general complaint safeguards. It distinguishes the NI Act exception and applies the PMLA line of reasoning. Cognizance and process were set aside for non-compliance, with the prosecution left for fresh consideration after hearing; the substantive allegations were not adjudicated in the accused’s favour. See paragraphs 26–35, 42–54.

This is a Bombay High Court ruling, not a Supreme Court ruling specifically on SEBI. [Source 8].

The important exception: cheque dishonour

In Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, Criminal Appeal 1755/2010, decided on 25 September 2025 by Manmohan and N.V. Anjaria JJ., paragraph 36(E) expressly directs that summons under Section 223 BNSS need not issue at the pre-cognizance stage in Section 138 NI Act complaints.

This does not remove the statutory demand notice or subsequent trial summons. Nor does it establish that every special enactment excludes Section 223. The contrary outcomes for PMLA and SEBI demonstrate why each statute’s procedural scheme must be examined. Commentary written before this Supreme Court direction should not be relied on for a contrary present-day NI Act position. [Source 3].

Before or after examining the complainant? The Delhi controversy

Brand Protectors India Pvt. Ltd. v. Anil Kumar, 2025:DHC:6044, CRL.M.C. 1495/2025, decided on 25 July 2025 by Neena Bansal Krishna J., supports examination of the complainant and witnesses first, followed by the accused’s hearing before cognizance. It does not turn the initial recording of statements into an accused-led cross-examination. See paragraphs 26–29 and 36–38. [Source 9].

However, Dr Rita Bakshi v. Seema Bajaj, CRL.M.C. 2551/2025, decided on 18 March 2026 by Swarana Kanta Sharma J., refers the sequencing issue to a larger bench. Paragraphs 30–34 formulate questions concerning the meaning of cognizance and whether notice must precede or follow examination on oath. The tension arises because the historical understanding placed such examination after cognizance, whereas the new wording and proviso have generated a different sequencing approach.

A reference is not an overruling judgment. The reference also permitted the particular proceedings to continue on the stated basis, subject to the larger-bench position. A subsequent larger-bench determination was not located in the accessible records reviewed as at 10 September 2026; current case status should be checked before reliance. The later PMLA ruling in Parvinder Singh should not, without analysis, be described as resolving every sequencing question in an ordinary private complaint. [Source 10].

What should the hearing address?

The following is a proposed litigation framework, not a claim that the Supreme Court has enacted an exhaustive checklist:

- Identify the allegation made against the particular proposed accused, rather than defending an undifferentiated group. - Address statutory competence, jurisdiction, legal bars and whether the complaint alleges the ingredients of the offence. - Identify any necessary sanction or complaint-authorisation issue separately from the merits. - Seek the complaint and the material on which cognizance is proposed so that the opportunity is meaningful; specify what is missing and why it matters. - Distinguish a legal objection apparent on the prosecution’s own case from a factual defence requiring disputed evidence. - Ask for an order addressing material objections without demanding a trial-level determination of credibility.

Do not claim an unconditional right at this stage to call defence witnesses, cross-examine the complainant, or introduce every defence document. The specific reservation in Kushal Kumar Agarwal prevents treating those questions as conclusively settled by that decision. Similarly, an opportunity of hearing is not a right to indefinitely defer a judicial decision.

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.

Transitional and supplementary complaints

For a proceeding spanning commencement of BNSS, prepare a chronology containing the complaint date, each pre-commencement judicial order, the nature of the asserted pending inquiry or investigation, and the cognizance date. Do not rely solely on the date a case number was assigned. Equally, do not assume that a subsequent hearing date automatically displaces the CrPC in an otherwise saved proceeding. Parvinder Singh must be applied to the actual procedural stage, not reduced to a universal reopening formula.

A supplementary complaint raises a different question. Identify whether it adds an accused, an offence, or only further evidence, and identify the earlier cognizance order. The argument that cognizance is taken of the offence does not itself answer every hearing claim of a newly added person. Conversely, the proviso should not be described as conclusively requiring repeated hearings for every further document. The Supreme Court left the supplementary-complaint issue open in Kushal Kumar Agarwal; further case-specific authority is necessary before taking a categorical position.

Consequence of denial and how to seek relief

The practical relief demonstrated by the direct Supreme Court cases is the setting aside of defective cognizance and reconsideration after compliance. It is not automatic termination of the prosecution on merits. A proposed challenge should identify the actual cognizance order, explain why the new procedure applies, demonstrate absence of the opportunity, and request precisely framed consequential relief.

Choice between revision and the High Court’s inherent jurisdiction requires examination of the order, applicable procedural restrictions and local precedent; this analysis does not assume that every challenge follows the same route. Nor should counsel assume that the trial court can simply review its own cognizance order. Where coercive steps are anticipated, seek express interim relief rather than treating the filing of a challenge as a stay.

Working checklist for a complaint file

1. Is this genuinely a complaint proceeding, rather than cognizance on a police report? 2. Does BNSS apply, or is the relevant proceeding saved under the earlier Code? 3. Does a special enactment prescribe a contrary procedure or attract the NI Act exception? 4. Has cognizance already occurred, judged from substance rather than the order’s label? 5. Was a real hearing opportunity afforded to the person challenging the order? 6. Which local rule governs the timing relative to sworn statements? 7. Is the requested defence participation supported by authority, or still contested? Is the requested remedy procedural reconsideration, merits dismissal, or separate protection against coercive action?

Conclusion

The strongest formulation is narrow and defensible: Section 223 creates an enforceable threshold hearing in the complaint proceedings to which it applies. PMLA’s seriousness does not dispense with it; SEBI has been addressed affirmatively by the Bombay High Court; Section 138 NI Act complaints stand on a different Supreme Court direction. The existence of the safeguard must not be confused with a settled entitlement to a preliminary trial or with a uniform nationwide sequence for every private complaint.

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

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