Law & Policy
The Accused Before There Is a Case: What the First Proviso to Section 223(1) Leaves Open
8 September 2026 · 8 min read
Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita reproduces Section 200 of the Code of Criminal Procedure, 1973 almost word for word. A Magistrate having jurisdiction, while taking cognizance of an offence on complaint, shall examine upon oath the complainant and the witnesses present, if any; the substance of the examination is reduced to writing and signed. Two phrases in that opening are new — the Magistrate must be one "having jurisdiction", and he examines "while" taking cognizance rather than simply "taking" it — and the second of them has since become the pivot of a reported disagreement. The exceptions that follow — a complaint by a public servant or a Court, a case made over to another Magistrate — are carried across from the old section with only the numbering changed.
Between the main clause and those familiar exceptions the Sanhita inserts a proviso that Section 200 did not have: "Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
One sentence, twenty-two words, placed first in the order of provisos. It displaces a rule the Supreme Court had stated in the plainest terms in 1963, and it does so without adding a single further word about how the displacement is to be worked.
What the rule was
The position under the Code was not merely that the accused was usually absent at this stage. It was that he had no standing to be present. In Chandra Deo Singh v. Prokash Chandra Bose, AIR 1963 SC 1430, the Supreme Court put it in terms that left no room: "an accused person does not come into the picture at all till process is issued", and at the inquiry stage "he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so." It would not be open to the Magistrate, the Court said, to put a question to a witness at the instance of the person named as accused, nor to examine any witness at his instance.
That was not an oversight in the Code's design. It followed from what cognizance was understood to be. Cognizance is taken of an offence and not of an offender — Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167 — which is why a Magistrate who takes cognizance on a police report may proceed against persons the police did not send up. If the act is directed at an offence rather than at a person, there is no person at that moment whose interest the act determines, and therefore nobody with a claim to be heard before it is done. The absence of the accused was a consequence of the structure, not an economy in it.
The proviso does not disturb Raghubans Dubey. Cognizance is still taken of an offence. But the proviso conditions it on hearing "the accused", and in a complaint case reaching a Magistrate for the first time there is, on the Code's own account, no accused — no process has issued, no proceeding exists against a person, and the Sanhita's machinery for compelling attendance sits in Section 227, which operates only once cognizance has been taken. The proviso therefore requires the Magistrate to hear someone whom the Sanhita gives him no stated means of calling, at a point before the proceeding in which that person would be a party has begun.
What the drafter specified elsewhere and not here
The omission is easier to read as deliberate than as inadvertent, because the very next sub-section shows the drafter specifying exactly the things the proviso leaves out. Section 223(2) bars cognizance on a complaint against a public servant for anything done in the discharge of official functions unless two conditions are met: the public servant "is given an opportunity to make assertions as to the situation that led to the incident so alleged", and a report on the facts and circumstances is received from his superior officer. There the content of the opportunity is named, and the material the Magistrate is to have before him is named.
The first proviso names neither. It does not say whether the accused is entitled to see the complaint, whether he may produce material, whether his statement is to be recorded, or whether the Magistrate must deal with what he says. Section 226 requires a Magistrate dismissing a complaint to record his reasons briefly; nothing requires reasons for taking cognizance after the accused has been heard. The hearing, on the face of the Sanhita, produces no document and leaves no trace.
Two further features of the placement are worth noting. The proviso is not subject to the exception that follows it: where a public servant or a Court has made the complaint, the Magistrate need not examine the complainant, but he must still hear the accused. And the proviso sits in Chapter XVI, which governs complaints alone. Section 210(1) gives three routes to cognizance — complaint, police report, and information or the Magistrate's own knowledge. The hearing attaches to the first only. A person charge-sheeted after investigation is not heard before cognizance; a person named in a private complaint is. The safeguard is keyed not to the gravity of the offence or to what cognizance costs the person, but to the absence of an investigating agency between the accusation and the court.
The stage the text does not fix
The main clause says the Magistrate examines the complainant "while taking cognizance". The proviso says no cognizance shall be taken without hearing the accused. Read together they do not settle the order of events, and the order matters entirely.
On the settled construction of the corresponding words in the Code, a Magistrate takes cognizance when he applies his mind to proceed under Section 200 and what follows — Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252. On that view the examination of the complainant is a step after cognizance, not before it; and a proviso forbidding cognizance until the accused is heard would put the notice at the very front, before any sworn statement exists. The accused would then be answering a complaint and nothing more. On the other view the examination of the complainant and the witnesses precedes the decision to take cognizance, and the accused is heard after that material is on record, with something specific to meet.
The Delhi High Court has divided on precisely this. In Dr Rita Bakshi v. Seema Bajaj, CRL.M.C. 2551/2025, decided on 18 March 2026, Swarana Kanta Sharma J. read two coordinate-bench decisions — Brand Protectors India (P) Ltd. v. Anil Kumar, 2025 SCC OnLine Del 5046, and Neeti Sharma v. Saranjit Singh, 2025 SCC OnLine Del 2329 — as holding that cognizance is not taken at the stage of recording the complainant's statement, and that notice under the first proviso issues after that statement has been recorded. She took the prima facie view that this is at variance with the Supreme Court's decisions on when cognizance is taken, and observed that the word "while" in Section 223(1) may be what had drawn the coordinate benches to the contrary reading. Two questions were referred to a larger bench: what constitutes the stage of taking cognizance on a private complaint under the Sanhita, and whether notice to the accused must issue on a perusal of the complaint but before the statements of the complainant and witnesses are recorded, or after those statements but before the decision on cognizance. The reference has not been answered.
A sanction fixed before its occasion
While the stage remains open, the consequence of getting it wrong has been settled. In Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, decided on 19 May 2026, Sundresh and Kotiswar Singh JJ. held that the first proviso is "substantive in nature", because it does not merely regulate the manner in which proceedings are conducted but confers a right forming part of the fair trial guarantee under Article 21; that "shall" in the proviso is mandatory; and that cognizance taken without complying with it is void ab initio. The accused is not required to show prejudice. The Court also held that the right is available where cognizance is taken after 1 July 2024 even though the complaint was filed before it, since Section 531(2)(a) saves only proceedings in which an inquiry, trial or investigation was already pending, and the numbering of a complaint is a ministerial act rather than an inquiry.
The ordering is unusual. A rule's content is normally worked out before its sanction is fixed; here the sanction is at the highest available setting — nullity, without proof of harm — while what the rule requires on the ground is before a larger bench. Whether a notice issued at the wrong point in the sequence is compliance at all is exactly what has not been decided; and the answer, when it comes, will be measured against a consequence already fixed at nullity rather than at irregularity.
The proviso is a small change to make and a large one to have made. It decides that in complaint cases the screening of an accusation is no longer something the State's machinery does to a person and then presents to him, but something done in his hearing. Whether what he is given is a defence — a right to answer sworn material before a court acts on it — or something narrower, a chance to put his account before a Magistrate who is still deciding whether the complaint is worth taking up at all, is not answered by the words. It depends on where in the sequence the hearing falls, and that is the question that is currently reserved.