Resolving a significant procedural controversy under the new criminal laws, a Division Bench of the High Court of Delhi comprising Justice Navin Chawla and Justice Ravinder Dudeja has held that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a Magistrate must examine the complainant and witnesses on oath before issuing notice to the proposed accused, and formal cognizance of an offence can only be taken after granting the accused an opportunity of being heard.
Background of the Case
The matter came before the Division Bench following a reference made by a Single Judge on March 18, 2026, in a petition filed by Dr. Rita Bakshi. The Single Judge flagged divergent interpretations regarding the stage at which “cognizance” is taken on a private complaint and when the newly enacted statutory notice under the first proviso to Section 223(1) of the BNSS must be issued to the accused.
Two criminal petitions were clubbed together for adjudication:
- Crl.M.C. 2551/2025, filed by proposed accused Dr. Rita Bakshi, challenging an order dated January 21, 2025, passed by the Judicial Magistrate First Class-03, South District, Saket Courts, which directed the issuance of notice to her prior to recording pre-summoning evidence.
- Crl.M.C. 3169/2026, filed by Anita Rani Mehra and another, challenging an order of the Additional Sessions Judge-05, Saket Courts, upholding a Magistrate’s order that issued notice to the proposed accused immediately upon receipt of a private complaint.
Under the Code of Criminal Procedure, 1973 (Cr.P.C.), the settled position was that a Magistrate first took cognizance under Section 190 and then proceeded to examine the complainant under Section 200, without any participation or hearing afforded to the accused. However, Section 223(1) of the BNSS introduced the words “having jurisdiction while” taking cognizance and incorporated a mandatory first proviso barring the taking of cognizance without giving the accused an opportunity of being heard.
Arguments of the Parties
Appearing for the petitioner in Crl.M.C. 3169/2026, Senior Advocate Pavan Narang contended that the first proviso to Section 223(1) is a statutory safeguard against false implication and unwarranted harassment. Reading Sections 210, 223, 225, 226, and 227 of the BNSS together, he argued that examination of the complainant and witnesses must necessarily precede notice to the accused. If notice were issued at the threshold on mere unverified pleadings, complaints lacking merit would drag individuals into court, defeating the Magistrate’s power to dismiss ill-founded complaints under Section 226 without disturbing the proposed accused.
Advocate Rakesh Malhotra, representing Dr. Rita Bakshi, adopted these submissions and argued that the insertion of the word “while” in Section 223(1) indicates that examining the complainant and witnesses is an integral part of the process leading up to cognizance, rather than an act following it. He submitted that for a hearing to be meaningful, the accused must be provided with the complaint along with the recorded statements of the complainant and witnesses.
Central Government Standing Counsel Amit Tiwari, representing the Union of India, submitted that the examination of the complainant forms part of the cognizance process and that hearing the accused is mandatory. However, he argued that the statute does not rigidly fix the sequence and that the Magistrate should have the discretion to issue notice either before or after recording statements, depending on the nature of the case, such as in complaints filed by public servants or those based purely on documentary evidence.
Additional Public Prosecutor Aman Usman, appearing for the State, argued that notice ought to be issued at the threshold prior to recording pre-summoning evidence. He submitted that the proviso was enacted to enable an accused to raise preliminary legal bars and jurisdictional defects, which would save substantial judicial time if the complaint is not maintainable.
Advocate Raajan Chawla, appearing for the complainant/respondent, argued that Section 223 essentially mirrors Section 200 of the Cr.P.C. and that the power to take cognizance remains grounded in Section 210. He contended that an accused has no right to interfere with or participate in the complainant’s pre-summoning evidence, and any hearing granted under the proviso must strictly be confined to whether the complaint discloses a prima facie case on its face.
The Court’s Analysis
The Division Bench observed that while Section 210 of the BNSS corresponds to Section 190 of the Cr.P.C. without substantive textual alteration, Section 223 introduces two critical departures from Section 200 of the Cr.P.C.: the addition of the phrase “having jurisdiction while” and the insertion of the first proviso mandating a pre-cognizance hearing for the accused.
Analyzing the temporal meaning of the word “while,” the bench held:
“Therefore, instead of the stage of the examination of the complainant and the witnesses present, being subsequent to the Magistrate taking cognizance, as was the position in the Cr. P.C., the legislature, by using the word ‘while’ has made the process of examination of the complainant and the witnesses a part of the process of the Magistrate taking cognizance of an offence on a complaint.”
The Court held that the Single Judge’s doubt arose from viewing the procedure through the lens of old precedents under the Cr.P.C., thereby overlooking the structural changes made in the BNSS.
Addressing the purpose of the first proviso to Section 223(1), the Court noted that summoning an accused is a serious matter that severely affects social and economic standing. Applying the mischief rule reiterated by the Supreme Court in Dr. Lokesh B.H. & Ors. v. State of Karnataka & Anr. (2026), the bench observed:
“The proviso added to Section 223(1) of the BNSS is therefore to address a mischief where the criminal process was initiated against an accused leading to a serious prejudice to an accused but without giving him an opportunity of being heard. It is intended to be a remedial provision beneficial to the accused, where the accused can show to the Magistrate the limited grounds that have already been recognized by the Courts where the cognizance of an offence should not be taken by the Magistrate, like the one detailed by the Supreme Court in Delhi Race Club (supra) and other such judgments. Such provision must be given full force and should be made effective. The only way to make it effective is that the notice required by the proviso to Section 223(1) of the BNSS, is issued to the accused after the Magistrate has examined the complainant and its witnesses.”
The Court rejected the Union of India’s contention that discretion should be left to Magistrates to issue notice either before or after recording statements. Justice Chawla observed that issuing notice before recording statements could lead to the accused interfering with the recording of the complainant’s evidence—a right not conferred by the statute.
The Bench reinforced its view by citing Supreme Court rulings in Kushal Kumar Agarwal v. Directorate of Enforcement (2025) and Parvinder Singh v. Directorate of Enforcement (2026), where the apex court held that the first proviso to Section 223(1) BNSS is substantive, mandatory, and part of the fair trial guarantees under Article 21 of the Constitution. The Court also aligned with concurring interpretations rendered by the High Courts of Karnataka (Basanagouda R. Patil), Allahabad (Prateek Agarwal and Rakesh Kumar Chaturvedi), Kerala (Suby Antony), Gauhati (Bhupendra Chaudhary), and Bombay (Sashidhar Jagdishan), as well as previous Single Bench decisions of the Delhi High Court in Neeti Sharma and Brand Protectors India Pvt. Ltd.
Decision and Answers to Reference
The Division Bench formally answered the two referred questions of law as follows:
- On the stage of cognizance and examination of witnesses: “The Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless it is exempted by the statute, and giving an opportunity to the accused to be heard. Therefore, under Section 223(1) of the BNSS, the examination of the complainant and the witnesses present on oath, unless exempted, and hearing the accused, are steps prior to taking the cognizance of the offence by the Magistrate.”
- On the stage of issuing notice to the accused: “The Magistrate is required to issue a notice to the accused, in compliance with the first proviso to Section 223(1) of the BNSS, after examining the complainant and the witnesses present on oath, unless exempted, and forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226 of the BNSS but cognizance may deserve to be taken of the offence. However, formal decision of taking cognizance can be taken by the Magistrate only after granting an opportunity of being heard to the accused.”
The Court clarified that after hearing the accused, if the Magistrate decides to take cognizance, the subsequent procedural stages under BNSS—postponing process for inquiry under Section 225, dismissing the complaint under Section 226, or issuing process under Section 227—remain intact and distinct.
The petitions have been directed to be listed before the Roster Bench on October 28, 2026.
Case Details:
Case Title: Dr Rita Bakshi v. Seema Bajaj & Anr.
Case No.: CRL.M.C. 2551/2025
Bench: Justice Navin Chawla and Justice Ravinder Dudeja
Date: September 29, 2026
