To what extent the Session Judge or Magistrate can permit accused to put his defence at pre-cognizance stage as per S 223 of BNSS?

 The transition from the Criminal Procedure Code, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) ushers in significant procedural shifts. Among the most impactful is the mandatory pre-cognizance hearing under Section 223 BNSS. This provision, a substantive departure from the CrPC's silent pre-cognizance stage, aims to embed natural justice at the very inception of criminal proceedings. However, the efficacy and fairness of this new 'filter' mechanism hinge critically on robust appellate oversight by Session Courts.

As a Session Court Judge, or an advocate navigating the revised landscape, understanding the precise contours of appellate intervention under Section 421 BNSS for orders passed under Section 223 is paramount. This article unpacks the Session Court's appellate role, highlighting common pitfalls at the Magistrate level and the grounds upon which such orders warrant corrective action.

The Mandate of Section 223 BNSS: A Brief Recap

Section 223(1) BNSS, with its transformative proviso, dictates that "No cognizance... without giving the accused an opportunity to be heard." This legislative innovation is designed to "nip frivolous litigation in the bud" and safeguard individuals from the ignominy and expense of unwarranted criminal proceedings. The hearing, however, is not a mini-trial but a preliminary check, primarily on jurisdictional and technical grounds.

The Session Court's Role: Revising for Procedural Fidelity

The Session Court, exercising its revisional jurisdiction under Section 421 BNSS, acts as a crucial arbiter in ensuring that the Magistrate's exercise of power under Section 223 adheres strictly to the legislative intent. Our primary concern is to verify procedural fidelity and ensure that the accused's nascent right to be heard is not rendered nugatory.

Here are the key areas where a Session Court must exercise vigilant scrutiny:

1. Deficient Notice: The Gateway to Nullity

The very foundation of a fair pre-cognizance hearing is proper notice. While the BNSS explicitly mandates "an opportunity of being heard," judicial pronouncements (such as the Delhi High Court's ruling in Brand Protectors, 2025) have rightly clarified that this is "not an empty formality."

Appellate Checkpoints:

·       Completeness of Notice: Did the notice to the proposed accused include a copy of the complaint and the sworn statements recorded under Section 223(1)? An omission here renders the opportunity to be heard meaningless, as the accused cannot prepare their limited submissions.

·       Timeliness and Mode of Service: While BNSS Chapter VI-A introduces electronic service, the Session Court must confirm that service was effected in a manner that genuinely afforded the accused sufficient time to appear and prepare.

·       Premature Notice: As highlighted by the Kerala High Court in Suby Antony (2025), notice must follow, not precede, the Magistrate's examination of the complainant on oath. Issuing notice prior to this crucial step is a procedural irregularity vulnerable to challenge.

Any defect in notice that compromises the accused's ability to meaningfully participate constitutes a strong ground for setting aside the Magistrate's order.

2. Scope Exceeded: Guarding Against the "Mini-Trial" Temptation

The most common misconception surrounding Section 223 is its scope. The pre-cognizance hearing is not a platform for a mini-trial or for delving into factual defences. As emphasized by the Punjab & Haryana High Court (2025), pleas must be limited to technical or jurisdictional grounds.

Appellate Checkpoints:

·       Review of Hearing Record: A meticulous review of the Magistrate's order and, if available, the hearing transcript, is essential. Did the Magistrate permit or entertain arguments relating to alibi, document authenticity, payment, or other factual defences?

·       Nature of Objections Entertained: Was the hearing confined to objections such as:

o   Absence of territorial or subject-matter jurisdiction.

o   Statutory limitation.

o   Lack of a mandatory sanction pre-condition.

o   Defective locus standi of the complainant.

o   Failure to disclose any offence even on a prima facie reading of the complaint.

·       Evidentiary Restrictions: Did the Magistrate permit the accused to tender defence documents? The logic from Debendra Nath Padhi (though in the context of charge-framing) applies a fortiori here – the pre-cognizance stage is not for defence evidence.

If the Magistrate allowed the hearing to morph into a factual inquiry, the Session Court must intervene to correct this overreach, often by remanding the matter for a fresh hearing strictly within the prescribed scope.

3. Absence of Reasoned Order: The Foundation of Just Decision-Making

A fundamental tenet of judicial decision-making is the recording of reasons. Whether cognizance is taken or the complaint is dismissed, the Magistrate's order under Section 223 must be a speaking order.

Appellate Checkpoints:

·       Clarity of Reasoning: Does the order clearly articulate why the Magistrate found prima facie grounds for taking cognizance, or conversely, why the complaint was dismissed?

·       Engagement with Objections: Did the Magistrate address the specific objections raised by the accused during the hearing? A perfunctory dismissal or boilerplate language is insufficient.

·       Basis for Decision: The order should demonstrate that the Magistrate applied their mind to the complaint, sworn statements, and the submissions made by the accused, before arriving at a decision.

An unreasoned or inadequately reasoned order compromises transparency and accountability, making it impossible for an appellate court to ascertain the basis of the decision. Such orders are ripe for revision.

4. Premature or Postponed Hearing: Adherence to Sequence

The procedural flow laid out by the Calcutta High Court (2025 Guidelines Order) is clear: registration → examination on oath → issuance of notice → pre-cognizance hearing → order on cognizance. Any deviation from this sequence can vitiate the proceedings.

Appellate Checkpoints:

·       Sequence Verification: Did the Magistrate ensure that the hearing occurred before the application of judicial mind to take cognizance?

·       Unjustified Delays: While flexibility is sometimes necessary, excessive and unjustified delays in conducting the hearing after notice is served can undermine the very purpose of an early 'filter'.

Strategic Recommendations for Session Courts and Advocates

For Session Courts, developing uniform revision checklists specific to Section 223 orders can standardize appellate scrutiny and ensure consistent application of the law. Furthermore, establishing expedited remand protocols with strict timelines for Magistrates will prevent undue delays in genuine cases.

For Advocates, particularly Defence Counsel, the Section 223 hearing offers a potent, albeit narrow, avenue for early intervention. Careful preparation focused solely on jurisdictional and technical flaws is crucial. For Complainant’s Counsel, robust drafting of the complaint and meticulous compliance with notice requirements are essential to withstand appellate scrutiny.

Conclusion

The mandatory pre-cognizance hearing under Section 223 BNSS is a laudable step towards aligning Indian criminal procedure with principles of natural justice and judicial economy. However, its success hinges on the rigorous and judicious application by Magistrates, and equally, on the vigilant appellate oversight by Session Courts. By meticulously reviewing for notice adequacy, adherence to hearing scope, and the articulation of reasoned orders, Session Courts can ensure that this critical procedural filter serves its intended purpose: enhancing fairness at the threshold of criminal litigation, ultimately benefiting both the accused and the justice delivery system.

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