This article aims to examine the contours of Section 223 of the BNSS, with a special focus on courts’ interpretation of the proviso to Section 223(1) of the BNSS and its practical implications.
Introduction
On December 25, 2023, India enacted a transformative triumvirate of laws – the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023. These new criminal laws became effective on July 1, 2024, repealing and replacing the long-standing pillars of criminal law – Indian Penal Code, 1860, the Code of Criminal Procedure, 1973 (“CrPC”), and the Indian Evidence Act, 1872, respectively.
The introduction of these laws heralds substantive and procedural reforms aimed at modernising and streamlining the criminal justice system. Among the most consequential changes is the replacement of Section 200 of the CrPC with Section 223 of the BNSS, signifying a new dimension to the criminal complaint process in India.
Section 200 of the CrPC to Section 223 of the BNSS: A Procedural Shift
Under the traditional framework, if the police fail to register a First Information Report (“FIR”), the complainant may approach any Magistrate under Section 190 of the CrPC to seek a direction for the police to investigate the complaint under Section 156(1). However, if the Magistrate finds that the allegations disclose a cognizable offence and forwarding the complaint to the police would not be just,[1] then Section 200 of the CrPC becomes applicable.
Section 200 of the CrPC requires the Magistrate to examine the complainant and witnesses on oath before taking cognizance.[2] A bare reading of Section 200 indicates that, at this stage, the accused has no locus standi to put forth its case before the Magistrate. On finding sufficient grounds for proceeding, the Magistrate may issue summons or warrants under Section 204 of the CrPC, at which stage the accused has the right to appear, argue, and contest the case.
The Supreme Court in Chandra Deo Singh v. Prokash Chandra Bose & Anr.[3]observed that, since the very question for consideration under Section 200 of the CrPC is whether the accused should be called upon to face the accusations / allegations made in the complaint, an accused does not have the right to take part in the proceedings nor can the Magistrate permit him to do so, till process has been issued to him. At this stage, only the intrinsic quality of the statements made before the Magistrate, i.e. the complaint, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant, are to be considered.
Section 223 of the BNSS[4] substantially builds upon the procedural framework of Section 200 of the CrPC but is distinct in that it retains the core requirement of examining the complainant and witnesses before cognizance,[5] but goes further by incorporating certain additional procedural safeguards.
The proviso to Section 223(1) of the BNSS provides “that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard”. Therefore, unlike Section 200 of the CrPC, Section 223 of the BNSS mandates that the accused shall be afforded opportunity to be heard at the preliminary stage, before cognizance is taken by the Magistrate
Judicial Interpretation of Section 223 of the BNSS
With these new criminal laws having taken effect only on July 1, 2024, Indian Courts are still adapting to these legislative changes, and judicial interpretation of specific provisions such as the proviso to Section 223(1) of the BNSS remains limited and evolving.
In this context, in Basanagouda R. Patil v. Shivananda S. Patil[6](“Basanagouda Judgement”), the Karnataka High Court attempted to clarify the legal conundrum surrounding the Magistrate’s procedural approach under Section 223. The case arose from a private complaint the Respondent filed under Section 223 of BNSS, alleging defamatory remarks made against him during an election rally. The central issue before the Karnataka High Court was whether the procedure the Magistrate followed – issuing the notice to the accused – aligned with the proviso to Section 223(1) of the BNSS.
The Petitioner (the accused) contended that the Magistrate had erred in issuing notice immediately after the complaint was filed, because Section 223 of the BNSS requires notice only before cognizance is taken. The Respondent (the original complainant) countered that the proviso to Section 223 of the BNSS only mandates the accused an opportunity to be heard before cognizance is taken, without specifying whether notice must be issued after filing the complaint or after recording sworn statements.
The Court opined that the provision clearly stipulates that the Magistrate must, before taking cognizance of an offence, examine the complainant and witnesses on oath, document their statements, and only then issue notice to the accused as per the proviso to Section 223(1) of the BNSS. Once, the notice is sent and submissions are considered, the Magistrate may take cognizance and proceed in accordance with law. Hence, issuing notice prematurely, without first recording the sworn statements, was deemed a procedural error violating the mandatory safeguards under Section 223 of the BNSS.
Emphasising that the opportunity to be heard is not a mere formality, the Court also opined that the notice sent under the proviso to Section 223(1) of the BNSS must include the complaint, the sworn statement, and the statements of any witnesses, ensuring the accused can appear and present their case before cognizance is taken.
Relying on the Karnataka High Court’s decision, the Allahabad High Court[7] and the Kerala High Court[8] reiterated that under Section 223 of the BNSS the accused must be afforded an opportunity to be heard after the Magistrate has examined the complainant and witnesses.
Gaps in the legislation
Meaning of “opportunity to be heard”
Before Section 223 of the BNSS, in private complaint cases, the accused had no role until process was issued under Section 204 of the CrPC. In this context, the Apex Court also observed that the inquiry under Section 200 of the CrPC was intended solely to assess whether sufficient evidence supporting the complaint justified the issuance of process, and not to conduct a full-fledged trial at that stage.[9] This framework ensured a clear separation between the complainant’s duty to establish a prima facie case and the accused’s right to defend, which began only after the Magistrate took cognizance of the case and issued process.
However, the introduction of Section 223 of the BNSS departs significantly this settled practice. While the Karnataka High Court in the BasanagoudaJudgement and subsequent judgements from the Allahabad and Kerala High Courts clarified when to issue notice to the accused at the cognizance stage under Section 223, legal vacuum remains regarding the meaning of “opportunity to be heard”.
The High Courts have observed this “opportunity to be heard” should not be a mere formality but failed to clarify its precise scope. Section 223 of the BNSS is also silent on whether the accused’s participation is limited to oral arguments on the material on record or if it allows a broader defence, such as submitting documents, or seeking to examine witnesses.
As the law currently stands, the proviso to Section 223(1) of the BNSS states that at the pre-cognizance stage, the accused may file a reply, present documentary evidence, address oral submissions or cross-examine the complainant’s witnesses. However, the meaning of “opportunity to be heard” remains open to interpretation.
Concluding Notes
Section 223 of the BNSS is indicative of a deliberate effort to strengthen procedural fairness and ensure a more robust scrutiny of complaints before the initiation of criminal proceedings. By mandating notice to the accused and granting a hearing before cognizance, the provision aims to modernise judicial processes through balanced, transparent mechanisms.
Although Section 531(2)(a) BNSS and subsequent rulings of the High Court[10] clarify that any pending investigation immediately before July 1, 2024, shall continue under the erstwhile CrPC, the Delhi High Court[11] is currently adjudicating on whether Section 223 – a beneficial provision for the accused – should apply retrospectively.
Moving forward, it remains to be seen how courts will navigate this delicate equilibrium to ensure meaningful engagement with the rights of the accused at the pre-cognizance stage without prejudging the merits of the case, which are to be determined at trial.
For further information, please contact:
Ankoosh Mehta, Partner, Cyril Amarchand Mangaldas
ankoosh.mehta@cyrilshroff.com
[1] Mona Panwar v. High Court of Judicature of Allahabad & Ors., (2011) 3 SCC 496.
[2] Section 200 of the CrPC “Examination of Complainant – A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witness present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: …”.
[3] 1963 SCC OnLine SC 4.
[4] Section 223 of the BNSS “Examination of Complainant – A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witness present, if any and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: …”.
[5] Section 200 of the CrPC corresponding to Section 223(1) of the BNSS.
[6] 2024 SCC OnLine Kar 96.
[7] Prateek Agarwal v. State of U.P. & Anr., 2024 SCC OnLine All 8212.
[8] Suby Antony v. Judicial First-Class Magistrate-III & Ors., 2025 SCC OnLine Ker 532.
[9] Nirmaljit Singh Hoon v. State of West Bengal & Anr., (1973) 3 SCC 753.
[10] Chowgule & Co. (P) Ltd. v. State of Goa, 2024 SCC OnLine Bom 2501; Abdul Khader v. State of Kerala, 2024 SCC OnLine Ker 3919; Prince v. State (NCT Of Delhi), 2024 SCC OnLine Del 4909; Deepu v. State of UP, 2024 SCC OnLine All 4289.
[11] Criminal Revision Petition No. 1300 of 2024; Criminal Revision Petition No. 1243 of 2024.
