Delhi HC Refers to Larger Bench Issue on Stage of Hearing Accused Under Section 223 BNSS Before Cognizance [Read Judgment]

New Delhi: The High Court of Delhi has referred to a Larger Bench an important question concerning the interpretation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly the stage at which an accused must be heard before a Magistrate takes cognizance of a private complaint.

Justice Swarana Kanta Sharma, in a judgment delivered on March 18, 2026, observed that conflicting interpretations had emerged regarding the newly introduced first proviso to Section 223(1) BNSS, which mandates that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”

The case arose from a petition filed by Dr. Rita Bakshi challenging an order of the Saket Court directing issuance of notice to the proposed accused persons before recording pre-summoning evidence in a private complaint alleging offences under Sections 420, 120B, 34, 35, and 37 of the IPC.

The petitioner argued that the accused could be heard only after the Magistrate had recorded the complainant’s pre-summoning evidence under Section 223 BNSS, since only thereafter would the court be in a position to meaningfully assess whether cognizance ought to be taken. Reliance was placed on several High Court decisions, including rulings of the Karnataka, Allahabad, and Kerala High Courts, as well as coordinate benches of the Delhi High Court, which had interpreted Section 223 to require issuance of notice after recording sworn statements.

The respondent, however, contended that settled Supreme Court jurisprudence treats proceedings under Section 200 CrPC, corresponding to Section 223 BNSS, as post-cognizance proceedings. It was argued that once a Magistrate proceeds to examine the complainant on oath, cognizance is already deemed to have been taken, making it necessary for notice to be issued before such examination.

Justice Sharma undertook an extensive review of Supreme Court precedents on the concept of “taking cognizance,” including decisions in Gopal Das Sindhi v. State of Assam, Jamuna Singh v. Bhadai Shah, CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., and Sarah Mathew v. Institute of Cardio Vascular Diseases. The Court noted that these authorities consistently hold that cognizance is taken once the Magistrate applies judicial mind to proceed under Chapter XV of the CrPC, including examination of the complainant under Section 200 CrPC.

The Court observed that the interpretation adopted by various High Courts and coordinate benches — namely, that cognizance is taken only after recording the complainant’s statement — prima facie appeared inconsistent with the above Supreme Court precedents.

At the same time, the Court noted that the change in statutory language under the BNSS may have contributed to the divergence in interpretation. While Section 200 CrPC used the phrase “a Magistrate taking cognizance,” Section 223 BNSS now uses the expression “while taking cognizance,” leading some courts to conclude that examination of the complainant forms part of, or even precedes, the process of taking cognizance.

In view of the apparent conflict, the Court referred the following questions to a Larger Bench:

1. What is the stage at which a Magistrate can be said to have taken “cognizance” of an offence, in the context of a private complaint under the provisions of the BNSS, and whether the expression “while taking cognizance,” as employed in Section 223(1) of the BNSS, implies that the examination of the complainant and witnesses on oath is a step prior to the taking of cognizance of the offence?
2. At what stage is the Magistrate required to issue notice to the accused in compliance with the first proviso to Section 223(1) of the BNSS — whether (a) upon perusal of the complaint but prior to recording the statements of the complainant and witnesses, if any, or (b) after recording such statements but before a formal decision on taking cognizance?

The Court directed that proceedings before the Magistrate in the present matter may continue from the existing stage, subject to any orders passed by the Larger Bench.

For the Petitioner: Mr. Rakesh Malhotra, Mr. Bharat Malhotra, and Ms. Smritika Kesri, Advocates

For the Respondents: Mr. Raajan Chawla, Ms. Pallavi Yadav, and Ms. Lavanya Chadha, Advocates; Mr. Manoj Pant, APP for the State

Case Title: Dr. Rita Bakshi v. Seema Bajaj & Anr.

[Read Judgment]