Section 223 BNSS: Magistrate Must Hear Proposed Accused Before Taking Cognizance, Tripura High Court Holds

The Tripura High Court has held that the pre-cognizance hearing introduced by the Bharatiya Nagarik Suraksha Sanhita, 2023 is mandatory in complaint cases.

Background to the criminal proceedings

The petition arose from a complaint filed by Kotak Mahindra Bank alleging offences under several provisions of the Bharatiya Nyaya Sanhita, 2023. The Chief Judicial Magistrate took cognizance on July 12, 2024 and transferred the matter to another Magistrate without first hearing the proposed accused.

The petitioners argued that this procedure directly violated the first proviso to Section 223(1) BNSS , which states that cognizance on a complaint shall not be taken without giving the accused an opportunity of being heard.

Why the Court intervened

Justice Biswajit Palit treated the new proviso as a substantive procedural safeguard introduced after the BNSS came into force on July 1, 2024. The Court rejected the State's contention that the order could be sustained merely because the Magistrate had not yet recorded the complainant or witnesses.

The judgment also referred to the Supreme Court's decision in Kushal Kumar Agarwal v. Directorate of Enforcement , noting that the proviso places an embargo on taking cognizance before the proposed accused is heard.

Present legal consequence

The cognizance order was set aside. The complaint was remanded to the Chief Judicial Magistrate, West Tripura, Agartala for fresh consideration in accordance with Section 223. The High Court also directed that its order be circulated to criminal courts across the State.