Allahabad HC explains what documents are to be sent to accused at pre-cognizance stage as per S 223 of BNSS

 Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate/concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter. {Para 10}

11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to subsection (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

 In the High Court of Allahabad

(Before Rajeev Singh, J.)

Prateek Agarwal  Vs State of U.P. Thru. Addl.

 Chief Secy. Deptt. Home Lko. And Another 

Application U/S 482 No. - 10390 of 2024

Decided on November 26, 2024

Citation: 2024 SCC OnLine All 8212

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Allahabad HC: The court must issue notice to accused at pre-cognizance stage as per S 223 of BNSS in the case of Drugs and Cosmetics Act

A close look of the summoning order would reveal that there is no recital about the fact whether the applicants have been put to notice at the pre-cognizance stage or not. In Prateek Agarwal (supra), the following was observed.-

"8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C. {Para 8}

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 18480 of 2025

M/S Associated Biotech And 3 Others Vs State of U.P. and Another

HON'BLE VIKAS BUDHWAR, J.

Dated: September 12, 2025

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Allahabad HC set aside a summoning order passed by the Special Judge under the SC/ST Act because no opportunity of hearing was given under Section 223(1) BNSS

It is further contended that as per proviso of Section 223(1) of BNSS-2023, no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard but he has failed to do so. Section 223(1) of BNSS-2023 reads as under:-

" 223. Examination of complainant. (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

(2) XXXX"

5. Learned A.G.A. opposed the appeal but did not dispute the legal position of law.

6. Upon hearing the rival submissions and perusal of the record, this Court finds that the learned Special Judge has passed the impugned summoning order without giving opportunity of hearing.

7. Accordingly, the present criminal appeal stands allowed. The impugned summoning order dated 25.04.2025, passed by Special Judge (SC/ST) Act Sonbhadra, is hereby quashed and set-aside. The matter is remanded to the court below to pass a fresh order in accordance with law after providing opportunity of hearing to all the concerned.

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL APPEAL No. - 10890 of 2025

Mekala Chandra Shekar And 2 Others Vs State of U.P. and Another

Author: SHEKHAR KUMAR YADAV, J.

Dated: November 25, 2025

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The Secret Files: How a Supreme Court Ruling in the case of P. Ponnusamy Vs. The State of Tamil Nadu is Changing the "Fair Trial" Game in India?

What if the evidence that could prove your innocence is sitting in a police locker, but the prosecutor isn't required to show it to you? In the high-stakes arena of criminal justice, the "might of the state’s police machinery" often holds a decisive advantage, possessing a mountain of data, witness statements, and physical objects collected during an investigation. Traditionally, the prosecution has been the gatekeeper, sharing only the specific evidence it intends to use to prove guilt. This leaves the accused in a perilous shadow, unaware of materials that might point toward their innocence.

The Supreme Court of India recently confronted this imbalance in P. Ponnusamy v. State of Tamil Nadu. Decided On: 07.11.2022,MANU/SC/1451/2022. This wasn't just a routine appeal; it was a "Death Reference" (RT No. 2/2021) involving several individuals facing the ultimate penalty. The case forced the Court to navigate a treacherous path between the need for efficient, timely trials and the constitutional mandate for a fair defense. This article reveals how the ruling—and its clarification of the "Draft Rules of Criminal Practice"—is fundamentally shifting the landscape of undisclosed materials in Indian courts.

1. The Right to Know What Isn't Being Used

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