Quick answer
Yes. Under the first proviso to Section 223(1) of the B.N.S.S., a Magistrate cannot take cognizance of an offence on a complaint without giving the accused an opportunity of being heard. The Supreme Court has held that this proviso puts an embargo (a legal bar) on the power to take cognizance (Kushal Kumar Agarwal v. Directorate of Enforcement, 2025) and that it is mandatory, so cognizance taken without hearing the accused cannot stand (Parvinder Singh v. Directorate of Enforcement, 2026). This safeguard did not exist in Section 200 of the old CrPC.
The law: Section 223 B.N.S.S.
- Section 223(1): a Magistrate taking cognizance of an offence on complaint must examine the complainant and the witnesses present on oath, reduce the substance to writing, and have it signed by them and by the Magistrate.
- First proviso: "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
- Second proviso: for a written complaint, examination on oath is not needed if a public servant acting in official duty or a Court made the complaint, or if the case is made over to another Magistrate under Section 212.
- Section 223(2): on a complaint against a public servant for acts in the course of official duties, cognizance requires (a) an opportunity for the public servant to explain the situation and (b) a report of facts from his superior officer.
Cognizance means the stage at which the court applies its judicial mind to the alleged offence in order to proceed against it. After this stage, the Magistrate may postpone process and hold an inquiry or direct investigation (Section 225), dismiss the complaint with brief reasons (Section 226), or issue process (summons or warrant) if there is sufficient ground (Section 227).
Supreme Court rulings
Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 INSC 760, Supreme Court of India, 9 May 2025 (Abhay S. Oka and Ujjal Bhuyan, JJ.). A complaint under the Prevention of Money Laundering Act (PMLA) was filed after 1 July 2024. The Court held that Sections 223 to 226 B.N.S.S. apply to such complaints, that the first proviso has no counterpart in Section 200 CrPC, and that it bars cognizance without hearing the accused. The cognizance order was set aside only for non-compliance with the proviso, and the accused was directed to appear and be heard.
Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, Supreme Court of India, 19 May 2026 (M.M. Sundresh and N. Kotiswar Singh, JJ.). The complaint was filed before 1 July 2024, but cognizance was taken on 2 July 2024, after the B.N.S.S. came into force. The Court held the proviso to be substantive and mandatory, and held that it applied because cognizance was taken after the B.N.S.S. came into force; the mere numbering and listing of the complaint earlier was not a pending "inquiry" saved by Section 531(2)(a). Cognizance taken without hearing the accused was held void, and the cognizance order was set aside without requiring proof of prejudice (actual harm to the accused). The Special Court was directed to hear the accused and proceed afresh from the cognizance stage.
Key points
- The hearing applies to cognizance on a complaint. It is found in Section 223, which governs complaint cases, not cognizance on a police report.
- The hearing comes before cognizance, so the accused can be heard before process is issued against him.
- In Kushal Kumar Agarwal, the scope of this pre-cognizance hearing was left open to be argued before the trial court.
Farhan files a complaint before the Magistrate alleging that Aadil cheated him. The Magistrate examines Farhan and his witnesses on oath. Before deciding to take cognizance, the Magistrate must give Aadil an opportunity of being heard. Only then can the Magistrate take cognizance and decide whether to dismiss the complaint or issue process against Aadil.
Current law note
Section 223 B.N.S.S. corresponds to Section 200 of the old CrPC, which required examination of the complainant on oath but gave the accused no hearing before cognizance. More rulings on the new code are collected in B.N.S.S. Case Law.
Exam point
First proviso to Section 223(1) B.N.S.S.: no cognizance on a complaint without giving the accused an opportunity of being heard. It is mandatory (Kushal Kumar Agarwal, 2025; Parvinder Singh, 2026) and has no equivalent in Section 200 CrPC.
