Summary: A magistrate takes cognizance of an offence on a private complaint prior to examining the complainant on oath under Section 200 of the CrPC, 1973. However, BNSS, 2023, has upset this settled position. Like the erstwhile Section 200 of the CrpC, Section 223 of the BNSS too confers a similar duty on the magistrate to examine the complainant on oath. But the newly-introduced proviso to Section 223(1) (absent under Section 200 CrPC) mandates that the accused must be heard prior to the magistrate taking cognizance of the offence. This is the point at which divergence arises, raising the issue of whether cognizance is taken before or after the examination of the complainant? High Courts in India, including the Delhi High Court, have interpreted Section 223(1) of the BNSS to imply that the magistrate must firstexamine the complainant on oath, then issue notice to the accused, and only take cognizance at the time of hearing the accused. However, several Supreme Court judgements have held cognizance as already been taken if the magistrate proceeds to examine the complainant on oath. The Delhi High Court took note of this variance in its judgement in Dr Rita Bakshi v. Seema Bajaj and has further referred the issue for consideration by a larger bench.
INTRODUCTION
It is firmly established that cognizance of an offence arising from a private complaint is taken prior to the examination of the complainant on oath under Section 200 of the Code of Criminal Procedure, 1973 (“CrPC”). A renewed debate has surfaced regarding the interpretation of Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), its successor provision. Under the CrPC, the accused was not entitled to be heard prior to the issuance of summons. In contrast, the new proviso to Section 223(1) BNSS (absent in Section 200 CrPC) mandates that the magistrate must not take cognizance (let alone issue summons) without first providing the accused with an opportunity to be heard.
High Courts in India have interpreted Section 223(1) to hold that the complainant is to be examined on oath first and notice to the accused in terms of the proviso is to be issued thereafter. It is at the stage of hearing the accused the question of taking cognizance arises. This judicial interpretation and the interplay between Section 223(1) (examination of the complainant on oath, i.e. the stage after cognizance was taken under the CrPC) and the proviso (which mandates hearing the accused before taking cognizance) has disturbed decades of established precedent.
The Delhi High Court referred the question to a Larger Bench by its judgement in Dr Rita Bakshi v. Seema Bajaj [1] (“Rita Bakshi”).
Issue for consideration by the Delhi High Court
A private complaint (“Complaint”) was filed by the respondent-complainant before a Judicial Magistrate, First Class-03, South District, Saket Courts (“JMFC”)[2], alleging commission of various offences under the IPC, 1860, by the petitioner-accused.
By an order dated January 21, 2025, the Ld. JMFC allowed the complainant’s application and directed the issuance of notice to the accused under the first proviso to Section 223(1) of the BNSS, even though the complainant had not been examined on oath. Aggrieved, the petitioner-accused approached the Delhi High Court to quash this order.
Submissions before the Delhi High Court
The petitioner-accused argued that prior to issuance of notice to him, the complainant had to be examined on oath, as it would serve to ensure meaningful hearing for him. Judgements of the High Courts of Delhi, Karnataka, Allahabad, and Kerala were relied on.
On the other hand, the respondent-complainant argued that as per several Supreme Court judgements, examination of the complainant can happen only after cognizance is taken. Hence, notice had to be issued to the accused first, to give effect to the mandate of the proviso of Section 223(1) viz. that no cognizance can be taken without notice to the accused to be heard.
The Delhi High Court’s Analysis
The court’s analysis relied on examining the judgements presented by the parties, and is summarised below:
Complainant to be examined first before hearing accused: Judgements relied upon by the petitioner
The Court examined the judgements by the Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil [3], the High Court of Allahabad in Prateek Agarwal v. State of U.P[4], High Court of Kerala in Suby Antony v. Judicial First-Class Magistrate III & Ors and its own coordinate bench in Brand Protectors India Pvt. Ltd. v. Anil Kumar, [5] and Neeti Sharma v. Saranjit Singh[6]. These judgements have collectively held that examination of witnesses under Section 223(1) must happen before taking cognizance and the right of the accused to be heard arises only after such examination. It is at this stage that the magistrate decides whether to take cognizance or not.
Notice should be issued to the accused first as cognizance has already been taken prior to examining the complainant: Judgements relied upon by the respondent
The Court noted the Gopal Das Sindhi v. State of Assam[7] decision, where it was held that cognizance is taken when the Magistrate applies his mind to the complaint under Section 190 of the CrPC (under Chapter XIV-titled conditions requisite for initiation of proceedings) for the purpose of proceeding under Chapter XV of the CrPC( titled complaints to magistrates), which beginswith Section 200.
The court also referred to Jamuna Singh v. Bhadai Shah[8], which held that examination of the complainant under Section 200 is, in itself, a clear indicator that cognizance has already been taken.
Other precedents of the Apex Court were also referenced to establish that examination of the complainant on oath is a post cognizance step (under CrPC).
Decision in Rita Bakshi and reference to Larger Bench
The Court concurred with the view of its coordinate bench. It noted that Section 200(1) of the CrPC provides that a Magistrate “taking cognizance… shall examine upon oath the complainant”, while Section 223(1) BNSS states that a Magistrate “while taking cognizance… shall examine upon oath the complainant.” It was held that the introduction of the word “while” in BNSS, seemingly links the examination of the complainant to the act of taking cognizance, rather than placing it thereafter.
Nonetheless, since several High Courts, including its own prior coordinate bench in Brand Protectors, had taken a view contrary to that by the Supreme Court, the court, referred the matter to a Larger Bench on the following questions:
“(i) What is the stage at which a Magistrate can be said to have taken ‘cognizance’ of an offence, in the context of a private complaint under the provisions of the BNSS, and whether the expression ‘while taking cognizance’ as employed in Section 223(1) of the BNSS implies that the examination of the complainant and witnesses on oath is a step prior to the taking of cognizance of the offence?”
“(ii) At what stage is the Magistrate required to issue notice to the accused in compliance with the first proviso to Section 223(1) of the BNSS – whether (a) upon perusal of the complaint but prior to recording of the statement of the complainant and witnesses, if any, or (b) after recording such statements but before a formal decision on taking cognizance?”
In the current matter, the Court directed that proceedings shall continue, subject to the outcome of the reference and any orders passed by the Larger Bench.
What lies ahead?
The issue isn’t a mere academic determination of whether the complainant must be examined ‘pre’ or ‘post’ cognizance. Rather, it is interpreting the width of a beneficial right given to the accused under Section 223(1) of the BNSS viz. to oppose a frivolous criminal complaint at the threshold.
Accepting the prevailing view under Section 200 of the CrPC may mean that it is the accused who will have to be heard even before the complainant. Under the High Courts’ view, the complainant will have to be examined first, giving a magistrate an opportunity to hear the accused after having considered the complainant’s case (to some extent). Furthermore, under Section 226 of the BNSS (corresponding to Section 203 CrPC), the magistrate may choose to dismiss the complaint altogether after examining the complainant on oath, thereby obviating any notice to the accused. The first interpretation, however, may not allow for this possibility.
The outcome of the reference assumes significance in this context.
[1] 2026 SCC OnLine Del 1390
[2] Dr. Seema Bajaj v. M/s Embryo Health Pvt. Ltd. & Anr.; CT Case No. 2771/2024
[3] 2024 SCC OnLine Kar 96
[4] 2024 SCC OnLine All 8212
[5] 2025 SCC OnLine Del 5046
[6] 2025 SCC OnLine Del 2329
[7] 1961 SCC OnLine SC 251
[8] 1963 SCC OnLine SC 263
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