Case at a Glance
After two police closure reports and protest petitions, a Special Judge took a complaint on file in October 2023 and recorded the complainant’s evidence in March 2024, but found a prima facie case and issued process only on 3 June 2026, after the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force. The Supreme Court held that cognizance was taken only by the 2026 order, when judicial mind was applied, so the proviso to Section 223 BNSS required the accused to be heard first. It set aside the order to the extent it found a prima facie case and took cognizance, treated it as a summons simpliciter, and directed the trial court to hear the accused before deciding on cognizance.
An FIR registered on 7 June 2022 ended in a police closure report on 6 August 2022. On a protest petition, further investigation was ordered under Section 173(8) of the Code of Criminal Procedure, 1973, but a second closure report followed on 14 February 2023. On a second protest petition, the Special Judge (SC/ST) took the complaint on board on 11 October 2023 and posted it for the complainant’s statement. The complainant, her husband and a doctor were examined on 6 March 2024, after which the matter remained pending for about two years.
On 3 June 2026, the Special Judge found a prima facie case and issued process against the appellants. They argued that this was the order taking cognizance, passed after the BNSS came into force on 1 July 2024, and that under the proviso to Section 223 BNSS they had to be heard before cognizance, relying on Parvinder Singh v. Directorate of Enforcement, (2026) 05 SC CK 0468, 2026 SCC OnLine SC 903. The State argued that cognizance had been taken before the BNSS came into force. The complainant argued that cognizance was taken when the complaint was accepted on file, relying on CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 46, and Zunaid v. State of Uttar Pradesh, (2023) 08 SC CK 0068, (2023) 14 SCC 576.
The Key Question Before the Court
When a complaint was taken on file before 1 July 2024 but the court applied its mind and found a prima facie case only in 2026, was cognizance taken under the BNSS, and did the accused have to be heard first under Section 223?
Cognizance Is the Application of Judicial Mind
The Bench examined CREF Finance, which explains that cognizance is taken of the offence, not the offender, and must not be confused with issuing process, and Zunaid, which sets out the options open to a Magistrate on a police report and a protest complaint. It then applied Parvinder Singh, observing that “under the BNSS taking cognizance is nothing but an application of judicial mind” and that “there is a requirement added to hear the accused before exercising the judicial mind”.
Looking at the sequence of orders, the Court found that when the complaint was taken on board in 2023, “the Court did not take cognizance at that stage and required the evidence of the complainant”. It was “the second order passed on 03.06.2026 that the judicial mind was applied”, by which time the BNSS was in force. Therefore, “the Court had to summon the accused and hear him before such cognizance was taken.” The order of 3 June 2026 was set aside to the extent that a prima facie case was found and cognizance was taken, and was confined to a summons simpliciter.
What the Court Actually Held
- Under the BNSS, taking cognizance is the application of judicial mind, and the proviso to Section 223 requires the accused to be heard before it.
- Taking a complaint on file and calling for the complainant’s evidence in 2023 was not cognizance; cognizance was taken only by the order of 3 June 2026.
- Since that order was passed after 1 July 2024, the BNSS applied and the accused had to be heard first.
- The order was set aside to the extent it found a prima facie case and took cognizance and treated as a summons simpliciter; the accused must appear within one month and be heard, with no observations on the merits.
Why This Judgment Matters
- It clarifies how Section 223 BNSS applies to complaint cases that began under the old Code but reached the cognizance stage after 1 July 2024.
- It confirms that the date of cognizance, not the date of the FIR or complaint, decides whether the BNSS hearing requirement applies.
- It gives accused persons in many pending complaint cases a right to be heard before the court applies its mind.
What Should Advocates Take Away From the Judgment?
For Accused Persons
- If a court took cognizance on a complaint after 1 July 2024 without hearing you, that order may be challenged under Section 223 BNSS.
- Being summoned under a summons simpliciter is the occasion to be heard before cognizance is decided.
For Counsel
- Examine the order sheet carefully to identify the exact order by which judicial mind was applied.
- Rely on Parvinder Singh and this ruling where complaints filed before the BNSS were acted upon after it came into force.
Key Takeaways
- Section 223 BNSS requires the accused to be heard before cognizance on a complaint.
- Cognizance is the point at which the court applies judicial mind, not merely when a complaint is received.
- If that point falls after 1 July 2024, the BNSS procedure governs.
- The remedy is to treat the order as a summons and hear the accused before deciding on cognizance.
Frequently Asked Questions
What does the proviso to Section 223 BNSS require?
As the Court read it with Parvinder Singh, the proviso adds a requirement that the accused be heard before the court applies its judicial mind and takes cognizance on a complaint.
Does the BNSS apply if the complaint was filed before 1 July 2024?
In this case, the Court held that what mattered was when cognizance was actually taken; since judicial mind was applied only in June 2026, the BNSS requirement of hearing the accused applied.
Has the case against the accused been quashed?
No. The order was set aside only to the extent it found a prima facie case and took cognizance; the accused must appear and be heard, after which the trial court will pass appropriate orders.
Conclusion
The ruling turns on a simple question: when did the court actually apply its mind? Because that happened only after the new law came in, the accused were entitled to the new safeguard of being heard first.
Practical takeaway: In complaint cases straddling 1 July 2024, identify the order by which the court actually took cognizance; if it came after that date without hearing the accused, seek to have it treated as a summons and ask to be heard under Section 223 BNSS.
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