Supreme Court: S. 225 BNSS | Magistrate Must Conduct Inquiry Or Order Probe Before Proceeding Against Accused Outside Jurisdiction

A Magistrate must conduct an inquiry himself or direct an investigation under Section 225 BNSS before issuing process against an accused who resides outside the territorial jurisdiction of the Court. Direct issuance of summons or process without complying with the mandatory procedure under Section 225 BNSS is impermissible. 

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2026

(@ SLP (CRL.) No.5873/2026)

RAJEEV MEHTA @ RAJIV KISHOR KIRTILAL MEHTA 

Vs

PARAM BIR SINGH

Dated: APRIL 10, 2026

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Supreme Court: BNSS S.223(1) Proviso Mandatory; Cognizance Without Hearing Accused is Void Ab Initio

As already discussed, though the complaint under the PMLA was filed earlier, the cognizance was only taken subsequently, on 02.07.2024, by which time the BNSS had come into force. Admittedly, the Appellant has not been heard at the time of taking cognizance. The mandate of a legislation which ensures the right of an Accused to a fair trial, whose liberty is at stake, cannot be dispensed with. Thus, the contention of the learned ASG that prejudice caused due to non-hearing at the stage of cognizance will have to be shown by the Accused cannot be accepted, as it is not a mere irregularity that would attract either Section 506 or 511 of the BNSS, but is an illegality that would vitiate the very proceedings. {Para 37}

38. Based on the above discussion, the views expressed by the High Court are, therefore, liable to be set aside. We do find that the allegations against the Appellant are quite serious. However, non-compliance with the first proviso to Section 223(1) of the BNSS vitiates the very order taking cognizance, and the same cannot be sustained in the eyes of the law. In fact, the Appellant has, at the earliest point in time, filed the application for recall of the order taking cognizance by placing reliance upon the said proviso. Had the Special Court allowed it, the trial would have proceeded further. Suffice it to state that the Appellant cannot be faulted for any delay that has occasioned.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2678 of 2026 

Decided On: 19.05.2026

Parvinder Singh Vs. Directorate of Enforcement

Hon'ble Judges/Coram:

M.M. Sundresh and N. Kotiswar Singh, JJ.

Author: M.M. Sundresh, J.

Citation: 2026 INSC 519,MANU/SC/0504/2026.

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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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Important articles and Judgments on S 223 of BNSS

 

1) 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?

https://www.lawweb.in/2025/07/to-what-extent-session-judge-or.html

2) No Need For Pre-Cognizance Summons To Accused In S.138 NI Act Case : Supreme Court Issues Directions For Speedy Trial Of Cheque Bounce Cases

E. Recently, the High Court of Karnataka in Ashok v. Fayaz Aahmad   MANU/KA/1743/2025 has taken the view that since NI Act is a special enactment, there is no need for the Magistrate to issue summons to the Accused before taking cognizance (Under Section 223 of BNSS) of complaints filed Under Section 138 of NI Act. This Court is in agreement with the view taken by the High Court of Karnataka. Consequently, this Court directs that there shall be no requirement to issue summons to the Accused in terms of Section 223 of BNSS i.e., at the pre-cognizance stage.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1755 of 2010

Decided On: 25.09.2025

 Sanjabij Tari Vs. Kishore S. Borcar and Ors.

Hon'ble Judges/Coram:

Manmohan and N.V. Anjaria, JJ.

Author: Manmohan, J.

Citation: 2025 INSC 1158, MANU/SC/1336/2025.

https://www.lawweb.in/2025/09/no-need-for-pre-cognizance-summons-to.html

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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.

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J & K HC: Magistrate may issue pre-cognizance notice to the accused as per S 223 of BNSS in cheque bounce case

 Section 223 BNSS provides for issuance of pre-cognizance notice to the accused and said provision was not available in the corresponding Section 200 of the repealed Code. Such requirement provided under Section 223 of the BNSS by way of proviso appear to be justice orientated as the same takes care of any legitimate defence of the accused to be appreciated by the Magistrate even at an earliest, while holding a preliminary inquiry and is not barred at all even in respect of complaints under N.I. Act as hereinabove discussed. However, the non-observance of the requirements, provided under Section 223 BNSS, regarding the examination on oath of the complainant/witnesses and the issuance of the pre-cognizance notice shall not render the proceedings invalid. {Para 10}

11. The satisfaction of the competent Court, as regards the maintainability of the complaint, in terms of the accrual of cause of action, is covered under the “inquiry phase,” preceding the “taking of cognizance”. A Magistrate while entertaining a complaint under Section 138 of the Negotiable Instruments Act is not barred to have the observance of the provisions providing for pre-cognizance notice.

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394. REad full Judgment here: Click here.

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J & K HC: Magistrate should not issue non-bailable warrant against accused at pre-cognizance stage of the complaint U/S 138 of NI Act

 So far as the case in hand is concerned, the learned Magistrate upon satisfying himself regarding to record the service of pre-cognizance notice could have inferred, the forfeiture of the right of hearing by the accused at pre-cognizance stage of the complaint and proceeded ahead on the complaint in accordance with law. There was no need for the Magistrate to compel the appearance of the accused by issuance of a subsequent nonbailable warrant as the pre-cognizance hearing was meant for him which he acquiesced. The Magistrate is within its powers to compel the attendance of the accused after taking cognizance on the complaint and even under such circumstances, the normal approach of the Magistrates should be issuance of summon followed by a bailable warrant if needed and the issuance of the non-bailable warrants should be the last option.{Para 12}

In the High Court of Jammu and Kashmir

(Before Mohd. Yousuf Wani, J.)

Mohd. Afzal Beigh Vs  Noor Hussain 

CRM(M) No. 374/2025 and CrlM No. 742/2025

Decided on May 2, 2025

Citation: 2025 SCC OnLine J&K 394

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Supreme Court: PMLA Accused Entitled To Hearing Before Cognizance Is Taken Of ED Complaint Filed After BNSS Came Into Effect

This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44 (1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India1 and Tarsem Lal v. Enforcement Directorate2. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1st July, 2024, Section 223 of the BNSS will apply to the present complaint. {Para 5}

6. The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

7. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside.

 In the Supreme Court of India

(Before Abhay S. Oka and Ujjal Bhuyan, JJ.)

Kushal Kumar Agarwal  Vs Directorate of Enforcement 

Criminal Appeal No. 2749 of 2025 

Decided on May 9, 2025

Citation: 2025 INSC 760,2025 SCC OnLine SC 1221

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