The first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives an accused something the Code of Criminal Procedure, 1973 never did: an opportunity of being heard before a Magistrate takes cognizance of a private complaint. What it did not clearly say is when that opportunity arises. On 29 September 2026, a larger Bench of the Delhi High Court in Dr Rita Bakshi v. Seema Bajaj & Anr. (CRL.M.C. 2551/2025 and CRL.M.C. 3169/2026) answered the question that had divided single Judges: the complainant and witnesses are examined first, and notice to the proposed accused issues after that examination but before the decision to take cognizance.
Why a larger bench was needed
Two petitions — CRL.M.C. 2551/2025 and CRL.M.C. 3169/2026 — reached the High Court from Magistrates’ orders that had taken opposite approaches to the same proviso. In one, the Magistrate had directed notice to the proposed accused before recording the complainant’s statement; in the other, the sequence was reversed. Single Judges of the High Court had themselves diverged on the point, and the question was referred to a Bench of Hon’ble Mr Justice Navin Chawla and Hon’ble Mr Justice Ravinder Dudeja.
The textual difficulty is real. Section 223(1) BNSS largely re-enacts Section 200 CrPC — the Magistrate examines the complainant and witnesses on oath — but adds the words “while taking cognizance” and a new first proviso: no cognizance without the accused being given an opportunity of being heard. Read one way, the examination itself is part of “taking cognizance”, so the accused must be noticed at the threshold. Read the other way, the hearing comes only once there is something for the accused to answer.
What the Court held
The Bench reasoned that the phrase “while taking cognizance” marks a deliberate departure from the CrPC: examination of the complainant is now folded into the cognizance process rather than preceding it as a detached preliminary. But the first proviso must also be given “full force” as a genuine protection against frivolous prosecutions — which it can only be if the accused is heard on the complete pre-cognizance record, that is, after the complainant’s evidence is on file. Hearing the accused before the complainant has even been examined would put the cart before the horse; hearing him after cognizance would make the proviso meaningless.
Old law and new, side by side
Complainant examined on oath; the proposed accused had no right to be heard before cognizance or summoning. His first remedy was often a revision against summoning or a quashing petition.
Complainant and witnesses examined; then mandatory notice and hearing to the proposed accused; only thereafter a reasoned decision on cognizance.
What this means in practice
For complainants, the decision confirms that the pre-summoning stage in Delhi now has an additional, built-in adversarial step. Complaints should be drafted to survive scrutiny with the accused’s counsel present — vague or omnibus allegations that might once have scraped past an ex parte cognizance order will now be tested immediately.
For persons receiving a Section 223 notice, the hearing is a significant opportunity, but a disciplined one. The accused may point to jurisdictional defects, absence of essential ingredients of the offence, limitation, or bars such as want of sanction. It is not the stage to lead defence evidence or to demand cross-examination of the complainant.
Complaint cases filed before 1 July 2024 but in which cognizance is taken afterwards raise transitional questions; courts have generally applied the BNSS safeguard by reference to the date of cognizance, not the date of the complaint. Advice on any pending matter should be taken on its own facts.
The judgment brings welcome uniformity to Magistrates’ courts across Delhi, which had been following inconsistent sequences since the Sanhitas came into force. It also underlines a broader theme of the new criminal codes: procedural protections at the threshold, in exchange for tighter, faster trials thereafter.
Frequently Asked Questions
What does Section 223(1) BNSS change for complaint cases?
Under the first proviso to Section 223(1) BNSS, a Magistrate cannot take cognizance of a complaint without giving the proposed accused an opportunity of being heard. The CrPC had no such requirement — under the old Section 200 regime the accused entered the picture only after summoning. The proviso is a new statutory safeguard against frivolous private prosecutions.
At what stage is the accused now heard, per the Delhi High Court?
After the complainant and witnesses are examined on oath, but before the Magistrate decides whether to take cognizance. The larger bench held that examination on oath is a step prior to taking cognizance under the new scheme, and notice to the accused follows that examination unless the complainant is exempted from examination.
Does the accused get to lead evidence at the pre-cognizance stage?
No. The opportunity is of being heard — typically to point out why, on the complaint and the pre-cognizance material, no case for cognizance is made out, including objections to jurisdiction or maintainability. It is not a mini-trial, and the accused cannot convert the hearing into a full-fledged defence at that stage.
What happens if cognizance is taken without hearing the accused?
The Supreme Court has held the proviso to Section 223(1) BNSS to be mandatory, and cognizance taken without affording the hearing is vulnerable to being set aside. An accused summoned in a post-1 July 2024 complaint case without a pre-cognizance hearing should take the objection at the earliest, by revision or a petition under Section 528 BNSS.