This article is authored by Wasim Beg and Harshita Rawat. 

Introduction 

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) introduces a novel procedure for taking cognizance of offences, requiring a pre-cognizance hearing where the accused is given an opportunity to be heard before the Magistrate takes cognizance of the alleged offence. This is a marked departure from the previous procedure under Section 200 of the Code of Criminal Procedure,1973 (CrPC), wherein there was no such requirement of audience of the accused. This Article seeks to undertake a critical analysis of the implication of the new procedure exploring whether it truly presents a pre-cognizance hearing stage or adds a redundant layer of procedure? 

Meaning and Interpretation of “Cognizance”

In its ordinary meaning, “cognizance” refers to awareness or knowledge. However, in legal parlance, it signifies the application of judicial mind by a court or Magistrate to a complaint or information before it. Although the term remains undefined in both the old and new Criminal Codes, it marks the point where the Magistrate takes judicial notice of an offence.

Indian courts have long attempted to clarify the concept of cognizance. As far back as in 1951, the Apex Court explained that taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. A more comprehensive definition was laid down in Sk. Siraj v. State of Orissa, wherein the Court elucidated the meaning of “taking cognizance” which occurs when a Magistrate applies their mind to the facts of a complaint for the purpose of initiating judicial proceedings or determining whether there is a basis for such proceedings. It is both a mental and judicial act, indicating that the Magistrate has concluded that there is a case worth inquiring into.

It is important to understand that cognizance differs from the issuance of process, which occurs at a later stage. As per Section 210 BNSS (Section 190 CrPC), Cognizance can be taken either upon a Private Complaint under Section 223 BNSS, Police Report or Chargesheet, or any other source or on its own motion. The present article is confined to Cognizance taken on private complaint. As per the old Code, after cognizance is taken, the Magistrate can decide to either issue process, if it appears that a prima facie case is made out, or dismiss the complaint. It is also important to distinguish cognizance from the “commencement of proceedings,” as the latter only occurs once the accused is made a party before the Court. 

Legal Framework: Section 223 BNSS  

Section 223 of the BNSS introduces a significant procedural shift. It mandates that before taking cognizance of an offence under Section 223 BNSS, the Magistrate must issue notice to the accused, giving them an opportunity to be heard. A bare perusal of the provision indicates that this is a pre-cognizance stage and it differs from the old Code, where the accused had no right of audience until cognizance was taken. Under the previous regime, the accused’s first involvement was only at the stage of charge framing, or during cognizance where the role of the accused was limited to grievances related to the investigation.

Now, under Section 223, before any application of judicial mind—traditionally referred to as taking cognizance—the accused is summoned to appear. This raises a key issue: if notice is issued to the accused, can it still be considered a pre-cognizance stage? Given that the Magistrate must review the complaint and any witness statements before issuing such notice, it implies that judicial mind is already being applied. Therefore, we argue, that this step may already constitute cognizance, contradicting the notion of a pre-cognizance phase. 

The Karnataka High Court, in Criminal Petition No. 7526 of 2024, elaborated on the procedure under Section 223. The Court, in an attempt to provide clarity to the new procedure, explained that upon filing a complaint, the Magistrate examines the complainant and any witnesses on oath, reducing their statements to writing. At this stage, cognizance is not considered to have been taken. A notice is then issued to the accused, affording them an opportunity to be heard. After hearing the accused, the Magistrate is deemed to take cognizance. The Court also emphasized that issuing notice to the accused cannot be a mere formality. The notice must be accompanied by the complaint, the complainant’s sworn statement, and any witness statements.

The interpretation of the new procedure laid down in Section 223 BNSS by Karnataka High Court brings clarity in understanding the procedure, but it does not answer our primary query.

When Is Cognizance Taken?

While there is no literature on the new procedure, we can attempt to adopt the understanding of the old Code in understanding when cognizance is taken. To understand when cognizance is actually taken, we must differentiate between various stages of judicial involvement. Under the old Code (Section 190 CrPC) and the new Code (Section 210 BNSS), three possible outcomes exist when a complaint is reviewed:

1. Upon presenting the complaint, if the Court is of the opinion that more investigation by the Police is required, it may direct the police to investigate further under Section 175(3) BNSS [156(3) CrPC]. Till this point, it cannot be said that cognizance is taken. 
2. The Court may order an inquiry on its own motion under Section 225 BNSS (202 CrPC), where it undertakes an examination of the complainant or witnesses before issuing process. At this point, cognizance is considered taken or to be precise, that the Court is taking cognizance. It is considered that the Court has applied its judicial mind and is of the opinion that additional inquiry is necessary in determining whether a prima facie is made out or not. 
3. The Court may dismiss the complaint under Section 226 or issue process under Section 227. In either case, cognizance is already deemed to have been taken and the Court has taken steps after taking cognizance of the Complaint.

Therefore, when the Magistrate applies judicial mind to the contents of the petition with the intention to initiate subsequent action against the accused – whether by issuing summons, or by dismissing the complaint under the old Code, or issuing notice under Section 223 of the new Code – such action unequivocally constitutes taking cognizance. 

Concept to Case Study: Pre-cognizance in Practice

To illustrate the practical application of the new procedure, we consider a case, currently pending adjudication, where a complaint of cheque dishonour was filed against seven accused. The Magistrate, after examining the complaint, dropped two accused and issued notices to the remaining five. This raises the fundamental question: does the issuance of notice, at this stage, constitute cognizance, or is it a preliminary step before the Magistrate applies judicial mind to the case? A bare reading of the new provision dictates that issuance of notice to the accused is a “pre-cognizance” hearing.  To put it differently, does the issuance of these notices represent a mere mechanical act, or does it involve the application of judicial mind?

If the act of issuing notices is purely mechanical, logically, the notices should have been sent to all seven accused. Conversely, if the Magistrate applied judicial mind in deciding to drop two accused and proceed against the others, it implies that cognizance has been taken, even at this stage. Thus, the notion of a “pre-cognizance” phase comes into question.

Applying the understanding explained above to aforementioned case of dishonouring of cheques,  it becomes evident that when the Magistrate proceeds to decide against whom he must proceed, it is clear that Cognizance is deemed to have been taken. When he decides to proceed against five accused instead of seven accused, it logically means that the Magistrate has come to the conclusion that there is a case to be enquired into and that no case is made-out against two of the seven accused persons. This exercise of judicial inquiry and application of mind, can only mean cognizance. 

If, we were to consider the second possibility, that issuing of notice is only a mechanical requirement or rather a mere formality, then it serves no purpose because the new procedure is summoning the accused twice, officially, even before the trial commences. 

Legal Lacunae and Concerns with the Pre-Cognizance Hearing

Other than the redundancy explained above, it also raises other potential issues with the introduction of the pre-cognizance hearing under Section 223 BNSS which are: 

1. No clear rationale for procedural difference: The pre-cognizance hearing is only required in cases initiated via private complaints, with no corresponding requirement for cases initiated through FIRs or on the Magistrate’s own motion. The accused has been given this opportunity dehors the principle laid down in several judgements which clearly lays down that the accused has no opportunity to be heard or to present his defence at such an initial stage. The law, ideally, must provide for equal modes of grievance redressal, and refusing to give an opportunity of hearing to accused during taking of cognizance on a chargesheet but allowing him right of audience during cognizance of complaint defeats the purpose of different mode of redressal mechanism.  Therefore, this discrepancy lacks a clear legal basis. 

Additionally, established legal principles dictate that no notice is required to be issued to the accused at the pre-cognizance stage. The introduction of a hearing at this stage disrupts this long-held practice. What purpose, then, does this additional procedure serve? If regular summons were issued, as was the practice under the old code, the accused would still have an opportunity to be heard once the summons is served. Introducing a so called “pre-cognizance” hearing not only creates an unnecessary layer of procedure but also disrupts the established judicial framework without providing any substantive advantage. 

1. Limited scope of inquiry: At the pre-cognizance stage, the Magistrate’s inquiry is limited to deciding whether sufficient grounds exist to proceed. The Magistrate cannot appreciate evidence or determine the guilt of the accused. This limited scope raises questions about the role of the accused at this stage, such as whether they can cross-examine witnesses or present evidence.
2. Judicial burden, duplicity and undue delay: The pre-cognizance hearing adds a layer of proceedings that mirrors the subsequent discharge hearing, during which the accused is also heard. This duplication not only burdens the judiciary but also delays the trial process. Given the existing backlog of cases, the new procedure seems counterproductive. 

Conclusion

The new procedure is not a mere change in a rule but has the potential of a systematic change or rather, a failure. While some may argue that this is done to prevent filing of false and malicious case and to nip them in the bud. However, as explained above, it can be safely concluded that it does more harm than good by adding an additional layer of inquiry which leads to an inevitable delay in trial. The accused’s right to an audience was anyway adequately safeguarded at subsequent stages even under the old Code, therefore, this new procedure only renders this early intervention redundant and procedurally inconsistent. If anything, it undermines the right of the complainant by introducing further delays in the process, thereby impeding the right of timely justice

The addition of a pre-cognizance hearing under Section 223 of the BNSS appears to lack both legislative intent and logic, particularly when viewed through the lens of established legal principles and aforementioned case. The role of the accused in this stage is unclear, and it introduces a duplicative process that does little to advance the administration of justice. If anything, it adds to the burden of the judiciary, undermining the efficiency that the new code seeks to promote.