Section 223 BNSS: Hear Accused After Sworn Statements, Before Cognizance, Rules Delhi HC

Independently written and published by Shahbaz Shah Legal Journal.

The Delhi High Court has clarified the order in which a Magistrate must deal with a private complaint under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Where examination on oath is required, the complainant and witnesses present must first be examined. Notice and a hearing for the proposed accused follow before the formal decision to take cognizance. Statutory exemptions from examination remain applicable. (Paragraphs 68–69 and 81.)

The Division Bench answered the reference in Dr Rita Bakshi v. Seema Bajaj & another, heard with Ms. Anita Rani Mehra & another v. Ms. Neena Kapoor, 2026:DHC:8460-DB. Justice Navin Chawla authored the judgment for the bench comprising himself and Justice Ravinder Dudeja. It was pronounced and uploaded on 29 September 2026, after being reserved on 30 July 2026.

The decision resolves the procedural sequence. It does not decide whether the allegations in either underlying complaint are proved. The petitions were directed to be listed before the roster bench on 28 October 2026, subject to the Chief Justice’s orders. (Paragraphs 81–83.)

Relevant part of the judgment: when cognizance can be taken

The following is the relevant extract from the first answer in paragraph 81, on page 49. This is part of the judgment, not the full judgment:

The Magistrate can take cognizance of an offence only after examining the complainant and the witnesses present on oath, unless it is exempted by the statute, and giving an opportunity to the accused to be heard. Therefore, under Section 223(1) of the BNSS, the examination of the complainant and the witnesses present on oath, unless exempted, and hearing the accused, are steps prior to taking the cognizance of the offence by the Magistrate.

Read or download the full 50-page judgment (PDF). The official Delhi High Court PDF is also available.

Relevant part: when notice must go to the accused

The second answer in paragraph 81, on page 50, sets out the notice stage:

The Magistrate is required to issue a notice to the accused, in compliance with the first proviso to Section 223(1) of the BNSS, after examining the complainant and the witnesses present on oath, unless exempted, and forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226 of the BNSS but cognizance may deserve to be taken of the offence. However, formal decision of taking cognizance can be taken by the Magistrate only after granting an opportunity of being heard to the accused.

Both answers should be read together. The second answer includes a preliminary assessment under Section 226; it does not require notice to be sent mechanically on receipt of every private complaint.

The two petitions behind the reference

In CRL.M.C. 2551/2025, Dr Rita Bakshi challenged a Magistrate’s order dated 21 January 2025 in CT Case No. 2771/2024, Dr Seema Bajaj v. M/s Embryo Health Private Limited & another. That order directed notice under Section 223 before recording pre-summoning evidence. (Paragraph 3.)

The second matter, CRL.M.C. 3169/2026, concerned Anita Rani Mehra and another. They challenged the Sessions Court’s order dated 7 April 2026 in Criminal Revision No. 702/2025, which upheld the Magistrate’s order dated 25 August 2025 in CT Case No. 4100/2025. The issue again concerned notice to the proposed accused at the initial complaint stage. (Paragraph 4.)

A Single Judge referred questions of law in the Bakshi matter on 18 March 2026. The Mehra matter was subsequently placed with it because it raised similar questions. The reference concerned when cognizance occurs under the BNSS and whether notice should precede or follow sworn statements. (Paragraphs 1–2.)

Why the word “while” matters under the BNSS

The Court contrasted the former Indian CrPC framework with the language of Section 223 BNSS. Under the older framework discussed in paragraph 49, cognizance under Section 190 preceded the examination contemplated by Section 200.

The Court identified material changes in Section 223, including the expression “having jurisdiction while” and the new hearing proviso. It read “while” in its temporal sense: examining the complainant and witnesses forms part of the process of taking cognizance, instead of being a step that necessarily follows a completed act of cognizance. (Paragraphs 52–58.)

That distinction explains why the Court did not simply carry over earlier decisions on the CrPC sequence. The provisions must be read together in light of the changed statutory language. (Paragraphs 57–59.)

The formal decision on cognizance must therefore wait until the required examination and hearing have occurred. This also explains why recording the sworn statements should not, by itself, be treated as completion of cognizance under the sequence settled by the Bench. (Paragraphs 69 and 81.)

The practical sequence for a private complaint

Read together, the answers in paragraph 81 give the following sequence where no statutory examination exemption applies:

1. The complaint comes before the Magistrate having jurisdiction.
2. The complainant and witnesses present are examined on oath as required by Section 223(1).
3. The Magistrate makes the preliminary assessment identified by the Court: the complaint does not deserve dismissal under Section 226, but cognizance may deserve to be taken.
4. Notice is issued to the proposed accused, who is given an opportunity of being heard.
5. The Magistrate then makes the formal decision on cognizance.
6. The subsequent decision about further inquiry, dismissal or process remains governed by the applicable provisions, including Sections 225–227.

This sequence should be applied with the statutory exceptions and the Court’s explanation in paragraph 71. It does not turn notice under Section 223 into a summons issued under Section 227.

Why the accused’s hearing follows the sworn statements

The Court treated the hearing as a meaningful safeguard. An accused must have a fair opportunity to address whether cognizance should be taken on the complaint and material before the Magistrate. Notice issued too early may restrict that opportunity because the required sworn material has not yet been recorded. (Paragraphs 66–69.)

The Court rejected the Union of India’s submission that the Magistrate should generally have a choice to issue notice either before or after examination. Where the law requires the statements, a meaningful notice follows them. Where the law dispenses with examination, the Court said the notice must be given without insisting on it. (Paragraph 68.)

The judgment also identifies a different risk of premature participation: interference with recording the complainant’s and witnesses’ statements. The hearing safeguard does not confer a right to control that exercise. (Paragraph 68.)

The hearing is limited; it is not a trial of the defence

Paragraph 70 describes the accused’s opportunity to show that, even if the complaint and sworn statements are accepted at face value, they do not disclose an offence. Paragraph 66 connects the safeguard with limited grounds recognised in the authorities concerning improper initiation of criminal proceedings.

The Court’s discussion therefore supports objections directed to whether cognizance can lawfully be taken. It does not create a full trial at the notice stage or a general right to cross-examine the complainant during the preliminary recording of statements. (Paragraphs 66 and 68–70.)

For practitioners, the important task is to identify the precise legal defect and relate it to the complaint and material available. The judgment should not be used to claim unrestricted participation in every preliminary step.

Statutory exemptions remain important

The Court repeatedly qualifies its answer with “unless exempted.” Paragraph 68 expressly states that where the statute exempts examination, the accused’s notice must be given without insisting on that examination.

The provisions reproduced in paragraph 48 include exceptions concerning certain written complaints by a public servant acting in official duties or a Court, and transfer-related situations. The existence and scope of any exception must be considered under the applicable provision; an exemption from examination should not automatically be treated as removing the separate hearing requirement discussed by the Court.

The article’s sequence concerns private-complaint cognizance under Section 223. It should not be extended without analysis to every police-report case or every proceeding under a special enactment.

Cognizance remains distinct from issuing process

The Bench rejected the argument that its interpretation merges cognizance with issuance of process. Paragraph 71 says that after hearing the accused and deciding to take cognizance, the Magistrate must still consider the next appropriate course.

The judgment identifies postponement of process and inquiry under Section 225, dismissal under Section 226, and issuance of process under Section 227. These provisions retain their separate functions. The pre-cognizance hearing is an additional safeguard, rather than an automatic order summoning the accused to face trial. (Paragraph 71.)

This distinction also matters when drafting a challenge. The particular order, its procedural stage and the material considered must be identified; “notice,” “cognizance” and “process” should not be used as interchangeable descriptions.

How the Bench treated earlier authorities

The reference arose from doubts about the earlier Delhi decisions in Neeti Sharma and Brand Protectors India. The Division Bench explained the BNSS changes and treated the after-examination hearing approach as consistent with its conclusion. It also discussed decisions from other High Courts supporting that sequence. (Paragraphs 7–12 and 74–80.)

Paragraphs 72–73 discuss the Supreme Court decisions in Kushal Kumar Agarwal and Parvinder Singh. As reproduced and explained by the Bench, they recognise the mandatory character of the opportunity to be heard before cognizance. The Delhi judgment’s specific contribution is its answer about the order of examination, notice, hearing and formal cognizance.

For connected reading, see our Parvinder Singh analysis on Section 223 BNSS and PMLA cognizance. The present reference should be read for its own questions and operative answers, rather than as a decision on every transitional or special-law issue.

What the Court actually ordered

Paragraph 81 answers both questions referred. Paragraph 82 directs listing before the roster bench on 28 October 2026, subject to the Chief Justice’s orders. Paragraph 83 directs communication of the judgment to the referral court.

The Division Bench did not finally allow or dismiss the substantive challenges in these two petitions. No finding that either complainant’s allegations were proved follows from this reference judgment. Its practical importance lies in settling the procedural sequence that the Magistrate must follow.

For Pakistani readers, this is an Indian decision interpreting the BNSS. Its comparative value should be kept separate from the procedure applicable under Pakistan’s own criminal law.

Sources and full judgment

• Full supplied judgment PDF.
• Official Delhi High Court judgment PDF.
• Delhi High Court official case-number search.
• Indian Kanoon alternative full text.

Case particulars: Dr Rita Bakshi v. Seema Bajaj & another, CRL.M.C. 2551/2025, CNR DLHC010207062025; with Ms. Anita Rani Mehra & another v. Ms. Neena Kapoor, CRL.M.C. 3169/2026, CNR DLHC010174322026. Citation: 2026:DHC:8460-DB. Main reasoning: paragraphs 49–73. Operative answers: paragraph 81, pages 49–50.

Frequently asked questions

When must notice under Section 223(1) BNSS be issued?

Under paragraph 81, notice follows the required sworn examination of the complainant and witnesses present and a prima facie view that the complaint does not deserve dismissal under Section 226 but may warrant cognizance. Statutory exemptions from examination remain applicable.

Can cognizance be taken before hearing the proposed accused?

The Court held that the formal decision to take cognizance can be made only after the proposed accused has been given an opportunity of being heard under the first proviso to Section 223(1).

Must the accused be notified before the complainant is examined?

Not under the sequence laid down here where sworn examination is legally required. The Court placed examination first, followed by notice and hearing before formal cognizance. (Paragraphs 68–69 and 81.)

Does the hearing allow cross-examination of the complainant at that stage?

The judgment does not confer that right. It explains that the accused may raise limited objections to taking cognizance, while preventing interference with recording the complainant’s and witnesses’ statements. (Paragraphs 68–70.)

What if the statute exempts examination of the complainant?

The exemption remains effective. Paragraph 68 says notice must then be given without insisting on an examination that the statute dispenses with.

Are cognizance and issuance of process the same stage?

No. Paragraph 71 keeps them distinct. After the hearing and a decision on cognizance, the Magistrate must still consider the applicable course under Sections 225, 226 and 227 BNSS.

Did the Division Bench finally allow or dismiss the two petitions?

No. It answered the reference and directed listing before the roster bench on 28 October 2026, subject to the Chief Justice’s orders. (Paragraphs 81–83.)

What is the citation and bench?

Dr Rita Bakshi v. Seema Bajaj & another, with Ms. Anita Rani Mehra & another v. Ms. Neena Kapoor, 2026:DHC:8460-DB, decided on 29 September 2026 by Justices Navin Chawla and Ravinder Dudeja. Justice Navin Chawla authored the judgment.