This Article, authored by me, is the outcome of an intellectual legal journey shaped by the guidance of my beloved mentor. It is through his encouragement that I have found the opportunity to engage with, and attempt to unravel, the intriguing and nuanced question of law raised by the learned Additional Solicitor General, Mr.Suryaprakash V. Raju, before the Hon’ble Supreme Court of India in “Kushal Kumar Agarval V. Enforcement Director, Criminal Appeal No.2749 of 2025. The matter was considered in the judgment delivered by the distinguished jurist, Hon’ble Justice Mr.Abhay S.Oka. by a fortunate turn of events, their lordship did not expressly address this precise issue in the judgment, thereby leaving a field open for reflection and scholarly explanation.
This article was penned by me purely in the spirit of academic interest and nothing more.
Outcome of the judgment, i.e. Mr. Raju, the learned Additional Solicitor General, has made two submissions. Firstly, he submits that the hearing given to the accused in terms of the proviso to sub-section (1) of Section 223 of the BNSS will be confined to the question whether a case is made out to proceed on the basis of the complaint and hence, only the complaint and the documents produced along with the complaint can be considered at the time of hearing. His second submission is that it is well settled that cognizance is taken by the criminal Court of the offence and not the offender. Therefore, after taking cognizance and after following the procedure prescribed by the proviso to sub-section (1) of Section 223 of the BNSS, if cognizance is taken, there will be no occasion to again take cognizance of the same offence (no recall or review by the same court) when supplementary or further complaints are filed. Therefore, at that stage, there will be no occasion to give the accused the opportunity to be heard.
Section 223. Examination of complainant.
(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses 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:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.
Issues
For the sake of my convenience, I write down above said both issues as follows:
- Whether the hearing to the accused under the proviso to sub-section (1) of section 223 of BNSS is confined only to scrutiny of the complaint and documents produced along with it to decide if a case can proceed?
- Whether cognizance is taken by the court only on the offence and not the offender, and once cognizance is taken, the court need not take cognizance again on supplementary (or) further complaints or give an opportunity of hearing to the accused?
Before attempting to address this issue, I would like to state some preliminary observations. The pre-cognizance stage concerns the issuance of a notice to appear, rather than a detailed summoning order under Section 204 of the CrPC / Section 227 of the BNSS. After receiving such a notice, the accused may generally raise the following objections at the pre-cognizance stage, as mentioned below.
- The Accused may raise the court’s lack of jurisdiction to take cognizance of the offences alleged in the complaint. (Note: In earlier 1973 code is concerned U/s.200 CrPC, inadvertedly the word jurisdiction fails to specify) and the same earlier proposition of law is concerned the distinguished jurist, K.T.Thomas speaking through Trisuns Chemical Industries V. Rajkumar Agarwal.
….It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to the jurisdiction of the criminal courts in enquiries and trials. That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. But section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court within whose local jurisdiction such thing has been done or such consequence has ensued.. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence.
- lack of locus standi (i.e.U/s.195-199 of CrPC) vice versa BNSS.
- Barred by limitation (unexplained and inordinate delay)
- Absence of valid sanction in accordance with the law.
- No prima facie case, which means doesn’t constitute any offence, due to the absence of atleast necessary ingredients.
- Scope of hearing under the first proviso:
- The magistrate/Judge must afford a hearing before taking cognizance to pervert arbitrary or unjustified initiation of criminal proceedings.
- This hearing is procedural and limited directed towards checking the maintainability of complaint.
- No detailed enquiry into the merits or evidence beyond the complaint and annexures is permissible of this stage.
- Accused can’t raise substantive defenses or produce documents to disprove allegations at the pre-cognizance hearing (Note: State of Orissa V. Debendra Nath Padhi 2005).
Thereafter, our Hon’ble Apex Court decided on 07.11.1962 viz. Ajithkumar Palit V. State of West Bengal in Crl.A.No: 188 of 1961.
…It is thus clear that there is no statutory requirement under the Crpc as to the class or character of material that must be before a judge before he can assume and exercise jurisdiction over a case.
This Judgment must clear that once cognizance is validly taken by a court upon a complaint and receipt of the records, no re-hearing or fresh cognizance is required, even if supplementary complaint reports or amendments are filed.
The hearing of the accused under the proviso to sub-section (1) of Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is not confined only to the scrutiny of the complaint and documents produced along with it. It must afford the accused a meaningful opportunity to be heard before the court takes cognizance of the offence.
The Hon’ble Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil held that the proviso indicates the accused should be given more than just a formality hearing. The notice to the accused must append the complaint, the sworn statement, and statements of witnesses, enabling the accused to present their case before cognizance is taken. The court emphasized that the hearing opportunity is not a mini-trial to cross-examine witnesses but a chance for the accused to submit a defensive case.
Similarly, the Kerala High Court in Suby Antony v. R1 & Ors. also observed that the accused is not required to produce incriminating material and that the accused’s role at this stage is to counter the complainant’s claims with defensive material, not to be the basis for summoning the accused. Summoning and hearing are distinct stages; hearing is a protective right for the accused prior to any coercive process.
The proviso requires the magistrate to issue the notice to the accused after examining the complainant and witnesses on oath and recording their statements under Section 223(1), but before taking cognizance. The accused must be served with the complaint and the evidence on record to fairly present their side.
The Supreme Court has upheld this principle as well, emphasizing that the right of hearing is substantive and not a mere formality but has not allowed this stage to become a full-fledged trial. The hearing is confined to the defensive opportunity of the accused, and the magistrate must consider the accused’s submissions before deciding on taking cognizance.
In summary, the hearing under the proviso to sub-section (1) of Section 223 BNSS is not limited to mere scrutiny of the complaint and accompanying documents but is a meaningful hearing where the accused is provided with the complaint and evidence to enable them to submit their case before cognizance is taken. Several High Courts and the Supreme Court have recognized and clarified this principle in distinct judgments such as Basanagouda R. Patil v. Shivananda S. Patil (Karnataka HC), Suby Antony v. R1 & Ors. (Kerala HC), and relevant Supreme Court pronouncements.
Forgoing discussion and earlier Ex-position law is concerned that the first issue resolves the question in favour of the submission made by learned ASG.
Now I would like to address or resolve the second issue:-
2. Cognizance is taken against the offence not the offender, a settled principle.
What is mean by cognizance?
First of all, the definition of cognizance is neither defined under CrPC/BNSS nor in any other laws.
At this juncture, I would wish to state one of the celebrated judgments of Hon’ble Calcutta High Court authored by Justice Das Gupta, Viz. “Superintendent and remembrance of legal affairs V. Abhami Kumar Banerjee”, which has clarified the meaning of “taking Cognizance”.
….What is "taking cognizance" has not--been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,--proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. My conclusion, therefore, is that the learned Magistrate is wrong in thinking that the Chief Presidency Magistrate was bound to take cognizance of the case as soon as the petition of complaint was filed.
Hon’ble Justice Das Gupta view was subsequently endorsed by our Hon’ble Apex Court, their lordship Kania.C.J in RR chari V. State of UP (AIR 1951 SC 207)
Thus, it is clear that the word “cognizance” indicates when the magistrate or Judge first takes judicial Notice of the offence.
Thereafter, our Hon’ble Apex Court in Dharampal and Ors V. State of Haryana (2014) 2 SCC 306:
Held: Reiterating cognizance of an offence can only be taken once.
In Balveer Singh and anr V. State of Rajestan (2016) 6 SCC 680.
Held: Nothing like second cognizance.
Very recently our Hon’ble Apex Court their Lordship J.B Pardiwala speaking through Kallu Nat @ Mayank kumar nagar V. State of UP Crl.A.No.10010 of 2025 dated 05.08.2025 has analyzed what is the import and the purport of cognizance under the scheme of Crpc 1973 and discussed meaning and expression of “cognizance” and “taking cognizance”.
Based on above said discussion and some condition precedents is concern, No need fresh cognizance and re-hearing based on supplementary or further complaint filed if any by accused.
My views expressed here are strictly personal.
This article penned by me purely in the spirit of academic interest and nothing more.
Author: Rajavel @ Rajubhai.B.A.,LLB.,
