Accused’s Representation in Pre-Cognisance Stage: An Unheard Concept in Criminal Jurisprudence [Implications of proviso to S 223(1) of the BNSS]

The recently enacted Bhartiya Nagrik Suraksha Sanhita, 2024 (BNSS) has introduced a paradigm shift in criminal jurisprudence with the inclusion of proviso to Section 223(1). This provision mandates that, in cases initiated through private complaints, a notice must be issued to the accused, granting them an opportunity to be heard before the magistrate takes cognisance of the offence. This development has opened Pandora’s box of legal questions and potential procedural complexities that warrant thorough examination by legal professionals.

Background: The Settled Law Under Section 200 of the CrPC

Traditionally, under Section 200 of the Code of Criminal Procedure (CrPC), the accused in a private complaint case did not participate in the proceedings until the court issued a process—either a summons or a warrant. The magistrate would first examine the complainant and any witnesses during the pre-summoning evidence (PSE) stage. Only upon finding a prima facie case and sufficient grounds to proceed would the court issue a process to the accused. This procedure maintained a clear boundary between the complainant’s initial burden and the accused’s right to defend.

The New Provision: Section 223(1) of the BNSS

Section 223(1) of the BNSS disrupts this established practice by requiring that a notice be issued to the accused at the pre-cognizance stage. Specifically, it states:

“Provided that no Magistrate shall take cognisance of an offence under clause (a) of sub-section (1) unless the accused has been given an opportunity of being heard.”

This proviso introduces the unprecedented concept of involving the accused before taking cognisance, effectively altering the procedural dynamics of private complaint cases. [1]

Legal Implications and Pertinent Questions

The introduction of this proviso raises several critical questions [2]:

1. Standard and Procedure for Notice Delivery: Should the notice to the accused be served following the same stringent standards as a summons? Will the court be prohibited from proceeding without ensuring the accused has been properly notified and heard?
2. Timing of the Notice: Is the notice to be issued immediately upon filing the complaint, or should it follow a preliminary inquiry to assess the complaint’s merit?
3. Procedures for Service Post-Appearance: Will the standard procedures for the service of summons still apply once the accused has appeared before the court in response to the notice? Practically speaking, if the accused has already presented themselves to defend against the charges, issuing a summons may become redundant or impractical. Should the court then proceed directly to admit the case, obtain the accused’s statement, and consider bail, or is it necessary to adhere to traditional procedures like issuing a warrant?
4. Accused’s Involvement: To what extent can the accused participate at this stage? Are they permitted to present evidence or challenge the complainant’s submissions, or is their role limited?
5. Evidentiary Value of Accused’s Statements: What legal weight will the accused’s statements hold during this pre-cognizance hearing? Could these statements influence the court’s decision to take cognizance?
6. Impact on Magistrate’s Powers Under Section 175(3) BNSS: How does this provision interact with the magistrate’s authority to order an investigation under Section 175(3) (formerly Section 156(3) of the CrPC) when a private complaint is made?
7. Applications Involving Civil Servants: How will this process affect cases where complaints are filed against public servants, considering the additional protections and procedures involved? Will the court be able to proceed on mere sanction from the concerned department?
8. Discretion of the Court: Is the issuance of notice mandatory in every complaint case, or does the magistrate retain discretion to dispense with it under certain circumstances?
9. Administrative Burden and Delays: Will this additional step create administrative challenges and delay the resolution of cases, potentially undermining the principle of speedy justice? Will this provision inadvertently cause more harm than good by complicating the early stages of criminal proceedings?
10. Dismissal of Complaints Based on Accused’s Submissions: Can the magistrate dismiss a complaint outright if persuaded by the accused’s arguments during this pre-cognizance hearing?

Over time, judicial interpretations will guide these points, and the provision’s application will become clearer. While these questions are pending before several High Courts, the Karnataka High Court in a recent order has analyzed the situation and provided some initial clarity.

Judicial Interpretation: Guidance from the Karnataka High Court

In addressing these concerns, the Karnataka High Court provided valuable insights while issuing the order in Basanagouda R. Patil (Yatnal) Vs Shivananda S. Patil. The court emphasized that the notice to the accused is not a mere formality but a substantive right that must be respected.

The High Court observed:

“Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of the proviso to sub-section (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. It is the clear purpose of Section 223 of BNSS 2023.”

In the case at hand, the magistrate had issued a notice to the accused immediately upon receiving the complaint, without conducting any preliminary examination. The High Court deemed this procedure erroneous, highlighting that due process requires initial scrutiny before involving the accused.

Consequently, the High Court quashed the magistrate’s order and remitted the matter for fresh consideration, instructing the lower court to adhere strictly to the procedural requirements and the observations made.

The High Court’s guidance underscores the need for a balanced approach that safeguards the rights of both the complainant and the accused. Key takeaways include:

• Mandatory Preliminary Inquiry: Magistrates should conduct a basic inquiry into the complaint’s merits before issuing a notice to the accused.
• Comprehensive Notice: The notice must include all relevant documents—the complaint, sworn statements, and witness testimonies—to ensure the accused can effectively exercise their right to be heard.
• Avoidance of Procedural Aberrations: Courts must avoid the mechanical application of the law and instead ensure that procedural safeguards are meticulously observed.

Conclusion

The introduction of Section 223(1) in the BNSS marks a significant shift in criminal procedure, bringing the accused into the process at an earlier stage than previously envisioned. While the intent may be to enhance fairness and prevent frivolous prosecutions, the practical implications raise several complex legal questions.

It is imperative for legal practitioners and the judiciary to navigate this new terrain carefully. Judicial interpretations, such as those from the Karnataka High Court, will play a crucial role in shaping the application of this provision. Ongoing discourse and perhaps legislative clarification may be necessary to resolve ambiguities and ensure that the provision serves the interests of justice without imposing undue burdens on any party.

As the legal community continues to grapple with these changes, staying informed and engaged with emerging jurisprudence will be essential. The balance between the efficient administration of justice and the protection of individual rights remains a cornerstone of our legal system—a balance that must be meticulously maintained in light of these new procedural developments.

1. Although the magistrate is responsible for issuing the notice under the proviso to S 223(1) BNSS, neither the new law nor current state practice rules specify a format for it. Here is a sample format provided for everyone’s convenience.
2. Opportunity to the (Proposed) Accused before taking cognizance on a complaint | A Curious New Provision in the BNSS, Bharat Chugh & Kritika Malik, Available here; Police will not register FIRs and magistrates cannot: Welcome to the regime of new criminal laws, Srikanth Chintala, Available here.