From a reading of the first order passed, taking on
record the complaint and requiring the complainant’s
presence for taking evidence, as also the second order
passed finding prima facie case made out on which process
was issued, we are of the opinion that it is the second order
passed on 03.06.2026 that the judicial mind was applied, as
prima facie case was found, deeming the cognizance having
been taken. That being so, the Court had to summon the
accused and hear him before such cognizance was taken. {Para 12}
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. of 2026
(@Special Leave Petition (Crl.) No.14343 of 2026)
Umar and Anr. Vs The State of Uttar Pradesh & Anr.
Dated: SEPTEMBER 23, 2026.
Leave granted.
2. In the above appeal, our attention is to be bestowed on
the short question as to whether ‘cognizance’ has been taken
in the protest petition filed under Section 200 of the Code of
Criminal Procedure, 1973 (Cr.PC) before or after the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into
force w.e.f. 01.07.2024.
3. We need not dwell upon the facts leading to the
complaint. Suffice it to notice that an FIR was registered on
07.06.2022, pursuant to which the police filed a Closure
Report after investigation on 06.08.2022. On 14.10.2022, a
protest petition was filed in which further investigation was
ordered under Section 173(8) of the Cr.PC on 29.11.2022.
After further investigation, a Closure Report was again filed
on 14.02.2023, against which also a protest petition was filed
on 28.04.2023. The complaint was taken on board on
11.10.2023 and the same was posted for statement of the
complainant, which was taken along with that of the other
witnesses produced, on 06.03.2024. The matter remained in
limbo till 03.06.2026 when the learned Special Judge,
(SC/ST), Azamgarh, by a detailed order prima facie found
commission of the offence and issued process against the
respondents.
4. Mr. Shoeb Alam, learned Senior Counsel appearing
for the appellant-accused would point out that Annexure P26
dated 03.06.2026 was the order by which cognizance was
taken; when the BNSS had come into force. Necessarily
cognizance could have been taken only after giving the
accused an opportunity of being heard as is statutorily
mandated in the proviso to Section 223 of the BNSS, a
departure from the pari materia provision in Cr.PC. The
learned Senior Counsel relies on a decision of this Court in
Parvinder Singh v. Directorate of Enforcement1, to urge two
1 2026 SCC OnLine SC 903
propositions; one, that after the BNSS came into effect, even
if the crime is registered or committed prior to that, the
procedure under the BNSS has to be followed, and then, that
before taking cognizance under the BNSS, the accused has
to be necessarily heard.
5. Ms. Srishti Singh, learned Advocate on Record
appearing for the respondent-State refutes the contention of
the appellant, specifically pointing out that cognizance has
been taken earlier to the BNSS.
6. Mr. Sayed Waseem Quadri, learned Senior Counsel
appearing for the respondent-complainant, would rely on
two decisions of this Court to buttress his contention that
there is no formal order required, to find cognizance having
been taken and cognizance cannot be confused with the
issuance of process. According to him, cognizance had
been taken, the minute the complaint was accepted to the
files of the Court. He relies on the decisions in CREF
Finance Ltd. v. Shree Shanthi Homes (P) Ltd.2 and Zunaid
v. State of Uttar Pradesh & Ors.3.
2 (2005) 7 SCC 46
3 (2023) 14 SCC 576
7. CREF Finance Ltd.2 was a case in which the record of
the Magistrate clearly indicated the words ‘cognizance
taken’ on 01.06.2000. This Court found that even if the same
was not recorded that would make no difference since
cognizance taken, is of the offence and not of the offender
and therefore issuance of process to the offender cannot be
confused with cognizance. It was held that once the Court
on perusal of the complaint is satisfied that it discloses the
commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter,
it must be held to have taken cognizance of the offence. (sic
para 10).
8. In paragraph 9 of the said judgment, this Court
referred to a number of decisions to hold that, cognizance is
used in the Cr.PC to indicate the point when the Magistrate
or Judge takes judicial notice of the offence and that it was a
word of indefinite import, depending upon the statutory
requirement.
9. Zunaid3 also held that when a police report is received
under Section 173, Cr.PC, whether it be a Closure Report or
a chargesheet, the Magistrate has three options; (1) to drop
action, then (2) take cognizance and issue process without
being bound by the conclusion arrived at by the police and
lastly, (3) take cognizance of the offence under Section
190(1)(a) on the basis of the original complaint and proceed
to examine upon oath the complainant and his witnesses
under Section 200.
10. In this context we also have to notice Parvinder Singh1
which held that under the BNSS taking cognizance is nothing
but an application of judicial mind and till such judicial mind
is exercised, an inquiry cannot be deemed to have
commenced. This is the position even under the Cr.PC, but
under the BNSS there is a requirement added to hear the
accused before exercising the judicial mind.
11. Essentially, it will depend upon the manner in which
the Court has proceeded with a report filed by the police, or
a protest complaint, for which we have to look at the various
proceedings in the present case. Annexure P23 is the order
passed on the protest petition, wherein a detailed
consideration was made and after laying down the options
available on the submission of a Closure Report, the Court
found justified an inquiry to be conducted by the Court itself
and directed the complainant to be produced for evidence
under Section 200 Cr.PC. Hence, the Court did not take
cognizance at that stage and required the evidence of the
complainant which was taken on 06.03.2024. The
complainant was examined as PW1, her husband as PW2
and a Doctor as PW3. No orders were passed and the matter
was kept pending for almost two years. On 03.06.2026,
Annexure P26 order was issued, wherein it was
categorically found that prima facie the accused has
committed the offences as alleged and hence process is
issued to the accused.
12. From a reading of the first order passed, taking on
record the complaint and requiring the complainant’s
presence for taking evidence, as also the second order
passed finding prima facie case made out on which process
was issued, we are of the opinion that it is the second order
passed on 03.06.2026 that the judicial mind was applied, as
prima facie case was found, deeming the cognizance having
been taken. That being so, the Court had to summon the
accused and hear him before such cognizance was taken.
13. In the above circumstances, we set aside Annexure
P26 order to the extent ‘prima facie case was found, and
cognizance was taken’ and confine it to a ‘summons
simplicitor’. The appellant accused shall appear before the
Court within a period of one month and on that day, or on
any other day if the complainant or her counsel is not
present, the matter shall be heard and appropriate orders
passed.
14. The appeal stands allowed without any observations
on the merits of the matter.
15. Pending application(s), if any, shall stand rejected.
……….……………………. J.
(J. B. PARDIWALA)
………….…………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
SEPTEMBER 23, 2026.
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