Introduction
The term “cognizance” does not find any ascribed definition in the Code of Criminal Procedure, 1973 (“CrPC”) or the Bhartiya Nagarik Suraksha Sanhita, 2023 (“BNSS”). It is the first step to the criminal trial process. The term cognizance however, has been defined in a multitude of judgements of the Supreme Court such as S.K.Sinha, Chief Enforcement Officer v.Videocon International Ltd. and Others.¹ wherein the Supreme Court has held that “the expression “cognizance” has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a court or a Judge, it connotes “to take notice of judicially”. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” The Supreme Court further emphasized that taking cognizance refers to the application of mind by the magistrate to the offence. The Supreme Court held that taking cognizance is a condition sine qua non for holding a valid trial.

The taking of cognizance by a magistrate for a private complaint was governed by Section 200 of the CrPC, 1973, which has been amended with the corresponding Section 223 of the BNSS, 2023. Prior to the Amendment Section 200 of the CrPC, 1973 dictated that the magistrate was to apply his mind to the contents of the complaint and examine the complaint and witnesses (if required) to determine whether to take cognizance and subsequently issue process under Section 204 of the CrPC, 1973. However, with the introduction of the BNSS, 2023, Section 223 of the Act creates additional requirements to be met by the magistrate viz a viz taking cognizance. The most significant addition is the addition of the requirement of the accused to be heard prior to cognizance being taken by the magistrate. The sections in comparison are as follows:

Section 200 of the CrPC, 1973

Section 223 of the BNSS, 2023

A Magistrate 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, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192; Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

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 under this section 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 further 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: Provided further that in case of a complaint against a public servant, the Magistrate shall comply with the procedure provided in section 217.

Meaning of cognizance
While Section 223 (1) of the BNSS seems similar to the predecessor statute, the inclusion of the phrase “A Magistrate having jurisdiction, while taking cognizance” does not seem to bring in a major change in procedure as a magistrate not having jurisdiction would either way be barred from taking cognizance and issuing process under the CrPC, 1973. To now understand the significant change in procedure it is essential to understand how taking of cognizance has been understood

In the landmark case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Alani Kumar¹ the Calcutta High Court held that :

“What is taking cognizance has not been defined in the Cr.P.C. and I have no desire to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190 (1) (a) Cr.P.C., he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent Section of this Chapter, but for taking action of some other kind. e.g. ordering investigation under Section 156 (3) or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

In the process of taking cognisance the magistrate takes judicial notice of an offence with the view to initiate proceedings in respect of an offence alleged to have been committed by the accused. Once the Magistrate has taken cognisance only then will the magistrate decide whether to issue process or not. Section 225 of the BNSS, 2023 (corresponding to Section 202 of the CrPC, 1973), confers power on the Magistrate to postpone the issue of process to the accused even after taking cognisance of the offence. At that stage the Magistrate can either inquire into the case himself, or direct investigation to be made by a police officer or such other person for the purpose of deciding whether there is sufficient ground for proceeding. The Supreme Court in the case of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others², expanded upon the scope of Section 202 of the CrPC, 1973 and held that :

“4. It would thus be clear from the two decisions of this Court that the scope of the inquiry under Section 202 of the Code of Criminal Procedure is extremely limited - limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint- (i) on the materials placed by the complainant before the court: (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defense that the accused may have. In fact it is well settled that in proceedings under Section 202 the accused has got absolutely no locus standi and is not entitled to be heard on the question whether the process should be issued against him or not.”

Therefore, the Supreme Court clarified that Section 202 of the CrPC, 1973 does not leave any scope for the accused to be heard at the stage of taking cognizance and initiating proceedings. As per the CrPC, 1973 the Magistrate is limited solely to the material placed on record without considering any defense. The Magistrate however is afforded the option to postpone issue of process by conducting an inquiry either by himself or by directing the police to investigate into the matter. Therefore prior to the amendment the accused has no role at the stage of initiating proceedings.

Role of the Accused
The amendment has now created a role for the proposed accused at the stage of initiation through the first proviso of Section 223 (1) of the BNSS, 2023. However, the construction of the Statute in consonance with the chapter as a whole, leaves several lacunae still to be filled. While the amendment may find justification under the principles of natural justice and the reduction of burden on the appellate courts entertaining revision proceedings and applications for quashing the proceedings all together, the delay in initiation of the trial may be exponentially increased as there is no structure as to how the accused is to be heard.

The statute remains silent on whether the matter is limited to arguments of the accused qua the material on record i.e. the complaint or whether the accused shall have the liberty to place documents on the record at the initial stage of the trial. The accused may have the possible options of examining the complainant and witness or to adduce oral and documentary evidence or have an in depth hearing at the initial stage based on prima facie facts. This however flies in the face of the need for a speedy trial which has be determined as an essential consideration. In A.R. Antulay v. Ramdas Sriniwas Nayak and Another³the Supreme Court observed that

“Upon a complaint being received and the court records the verification, it is open to the court to apply its mind to the facts disclosed and to judicially determine whether process should or should not be issued. It is not a condition precedent to the issue of process that the Court of necessity must hold the inquiry as envisaged by Section 202 or direct investigation as therein contemplated. The power to take cognizance without holding inquiry or directing investigation is implicit in Section 202 when it says that the Magistrate may “if he thinks fit, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer...,for the purpose of deciding whether or not there is sufficient ground for proceeding”. Therefore, the matter is left to the judicial discretion of the court whether on examining the complainant and the witnesses if any as contemplated by Section 200 to issue process or to postpone the issue of process. This discretion which the court enjoys cannot be circumscribed or denied by making it mandatory upon the court either to hold the inquiry or direct investigation. Such an approach would be contrary to the statutory provision. Therefore, there is no merit in the contention that by entertaining a private complaint, the purpose of speedy trial would be thwarted or that a pre-process safeguard would be denied.”

The Supreme Court here speaks on the non - mandatory nature of an inquiry or investigation into the complaint under Section 202. The Supreme Court highlights should an inquiry be mandatory it would be antithetical to the purpose of speedy trial. However, with the new proviso to Section 223 of the BNSS, 2023 the need to hear the proposed accused makes it mandatory for the magistrate to now inquire into the matter vis a vis hearing both parties in the matter, which may greatly extend the duration of the trial. However, at the same time in the long run the hearing of the accused at this stage may allow the magistrates to avoid spending years on faulty and malicious complaints and nip the matter in the bud.

Notice to the Accused
The next factor of consideration is to determine when exactly the notice to the accused is to be issued. The statute remains silent as to whether the notice is issued immediately upon receipt of the complaint by the magistrate or after the sworn statement of the complainant is recorded which was dealt with by the Karanataka High Court in the case of Basanagouda R. Patil v. Shivananda S. Patil:⁴

1. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
2. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.
3. 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.
4. 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 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. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

The decision and procedural order laid down by the Karnataka High Court has been affirmed by the Kerela High Court in Suby Antony v. JFCM-III.⁵

The Section 223 of the BNSS, 2023, now may create a new classification of a proposed accused. As the notice issued under Section 223 is not issued to a person who is already an accused in a criminal complaint as under Section 204 of the CrPC, 1973 but to a person who may be a potential accused depending on the proceedings under section 223 of the BNSS, 2023. However, here it remains unclear and subject to judicial interpretation as to the rights and procedure of participation of the proposed Accused at the initial stage of the complaint. If the judgment of the Karnataka High Court is followed it is still to be answered whether the proposed accused may, like the complainant, submit their contentions in writing along with documentary evidence which may form a part of the record and be part of the trial process.

Conclusion
The proviso in Section 223 (1) of the BNSS is a double-edged sword in its current iteration without significant jurisprudence. While on one hand the proviso solves the issues of malicious prosecution and overburdening of appellate courts, at the same time it increases the judicial workload of the trial court prior to the initiation of the trial itself. The lacunae in the possible options for hearing of the accused and technicalities therefore require addressing either by the Courts or the legislature through subsequent amendments.

By - Parshva Shah