New Delhi: The Supreme Court has held that a trial court took cognizance of an offence not when it accepted a protest petition and recorded the complainant's evidence, but when it later found a prima facie case and issued process, and that because this happened after the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force, the accused had to be heard before cognizance was taken.
A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran was hearing an appeal by Umar and another against the State of Uttar Pradesh. The short question was whether cognizance on the protest petition filed under Section 200 of the Code of Criminal Procedure, 1973 was taken before or after the BNSS came into force on 01.07.2024.
The Court briefly noted the sequence of events. An FIR was registered on 07.06.2022, and the police filed a Closure Report on 06.08.2022. A protest petition followed on 14.10.2022, on which further investigation was ordered under Section 173(8) of the Cr.PC on 29.11.2022. A second Closure Report was filed on 14.02.2023, drawing another protest petition on 28.04.2023. The complaint was taken on board on 11.10.2023, and the statements of the complainant and her witnesses were recorded on 06.03.2024. The matter then remained in limbo until 03.06.2026, when the Special Judge (SC/ST), Azamgarh, found by a detailed order that the offence was prima facie made out and issued process against the accused.
Senior Advocate Shoeb Alam, for the appellant-accused, argued that the order of 03.06.2026 was the one by which cognizance was taken, when the BNSS was already in force. Cognizance, he submitted, could therefore be taken only after hearing the accused, as the proviso to Section 223 of the BNSS mandates, a departure from the corresponding Cr.PC provision. He relied on Parvinder Singh v. Directorate of Enforcement for the propositions that BNSS procedure applies even to a crime registered before its commencement, and that the accused must be heard before cognizance is taken.
Advocate-on-Record Srishti Singh, for the State, contended that cognizance had been taken before the BNSS came into force. Senior Advocate Sayed Waseem Quadri, for the complainant, argued that no formal order is needed to show cognizance has been taken, that cognizance must not be confused with issuance of process, and that it was taken the moment the complaint was accepted to the court's files. He relied on CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. and Zunaid v. State of Uttar Pradesh.
The Court examined these decisions. In CREF Finance, the Magistrate's record itself said 'cognizance taken', and this Court held that cognizance is of the offence and not the offender, so issuing process cannot be confused with it. It also described cognizance as a word of indefinite import, denoting the point at which a Magistrate or Judge takes judicial notice of an offence. Zunaid held that on receiving a police report under Section 173, whether a Closure Report or a chargesheet, the Magistrate may drop the matter, take cognizance and issue process without being bound by the police conclusion, or take cognizance on the original complaint and examine the complainant and witnesses under Section 200. Parvinder Singh, the Bench noted, held that under the BNSS taking cognizance is an application of judicial mind, and that no inquiry can be deemed to have commenced until then. That is the position under the Cr.PC as well, but the BNSS adds a requirement to hear the accused first.
The Bench observed that the answer depends on how the court actually proceeded on the police report or protest complaint. The order on the protest petition (Annexure P23) had considered the options available after a Closure Report and found it justified for the court itself to conduct an inquiry, directing the complainant to be produced for evidence under Section 200 Cr.PC. Hence, the Court held, cognizance was not taken at that stage. The complainant was examined as PW1, her husband as PW2 and a doctor as PW3, after which no orders were passed for almost two years.
The order of 03.06.2026 (Annexure P26), by contrast, categorically found that the accused had prima facie committed the alleged offences and issued process. Comparing the two orders, the Court concluded that "it is the second order passed on 03.06.2026 that the judicial mind was applied", as a prima facie case was found and cognizance was deemed taken. That being so, the trial court was bound to summon the accused and hear him before taking cognizance.
The Bench accordingly set aside Annexure P26 to the extent that it found a prima facie case and took cognizance, and confined it to a summons simpliciter. The appellant-accused was directed to appear before the trial court within one month. On that day, or on any other day if the complainant or her counsel is not present, the matter is to be heard and appropriate orders passed.
The appeal was allowed without any observations on the merits of the matter, and pending applications were rejected.
Appearances:
For the Appellants: Mr. Shoeb Alam, Senior Advocate.
For the State: Ms. Srishti Singh, Advocate on Record.
For the Complainant: Mr. Sayed Waseem Quadri, Senior Advocate.
Case Title: Umar & Anr. vs. State of Uttar Pradesh & Anr., Criminal Appeal arising out of SLP (Crl.) No. 14343 of 2026
