The Delhi High Court held that a magistrate cannot take cognisance of a private complaint under Section 223(1) of the BNSS without first examining the complainant and witnesses on oath and affording the accused an opportunity to be heard.
In a significant clarification on pre-cognisance procedure, the Delhi High Court ruled that magistrates must follow due process before taking cognisance of private complaints. A Division Bench of Justices Navin Chawla and Ravinder Dudeja held that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), examination of the complainant and witnesses on oath, along with a hearing for the accused, are mandatory prerequisites to taking cognisance.
Procedural Safeguards Under BNSS
The court emphasized that Section 223(1) BNSS introduces structural safeguards to prevent frivolous or vexatious prosecutions. The Bench observed that these procedural steps—oath-based examination and hearing for the accused—must be completed prior to the formal act of taking cognisance. By placing these steps before cognisance, the legislature intended to filter baseless complaints at an early stage.
"The act of taking cognisance cannot precede the examination of the complainant and witnesses on oath and the opportunity of hearing granted to the accused."
This interpretation aligns with the BNSS’s objective of ensuring fairness and procedural integrity in criminal complaints initiated privately, as opposed to police-reported cases.
Implications for Criminal Practice
The ruling clarifies a critical threshold issue in criminal procedure: when exactly a magistrate may proceed against an accused. Legal practitioners must now ensure that magistrates comply with Section 223(1) BNSS before recording cognisance in private complaint cases. This decision may prompt revision petitions or pre-cognisance writs where such compliance is absent, especially in sensitive cases involving allegations of defamation, cheating under BNS 318(4), or matrimonial disputes.
Citations
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