A Flawed Law And An Equally Flawed Interpretation Of That Law

A FLAWED LAW AND AN EQUALLY FLAWED INTERPRETATION OF THAT LAW (in Basanagouda R. Patil v. Shivananda S. Patil 2024 SCC OnLine Kar.96 and Suby Antony v. JFCM-III (2025) KHC OnLine 97)

In an earlier article titled “Absurdity No: 1 in the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short)” dated 13-03-2024, I had occasion to caution that Section 223 (1) BNSS lays down a “strange procedure” on a Magistrate receiving a “private complaint”. No judicial pronouncements on the above provision had been rendered at that time since the BNSS was yet to come into force on 01-07-2024. But, what I feared in that article has now taken place in the Karnataka and Kerala High Courts.

2. Before examining the legality or otherwise of the verdicts in question, let us make a comparative study of Section 200 Cr.P.C. and the corresponding Section 223 BNSS.

3. Sub-section (2) of Section 223 BNSS is also a new provision the flaws of which we are not concerned at present. With regard to sub-section (1) of Section 223 BNSS there are two additions, namely, “having jurisdiction” and “while” which have been highlighted in the comparative table given above. Yet another addition is the first proviso which is also highlighted in the comparative table. The highlighted portion in the words “a Magistrate having jurisdiction” in Section 223 (1) of BNSS is really an unnecessary surplusage. The curial act of taking cognizance of an offence is part of an “inquiry”. A Magistrate can conduct an “inquiry” and “trial” only if he has jurisdiction to do so in accordance with Chapter XIV of BNSS (corresponding to Chapter XIII of Cr.P.C.). With regard to addition of the word “while” in Section 223 BNSS so as to read “a Magistrate while taking cognizance of an offence”, the presence of the word “while” does not, in my view, make any difference from the words “a Magistrate taking cognizance of an offence” occurring in Section 200 of Cr.P.C.

What is taking cognizance of an offence on a “complaint”

4. “Taking cognizance of an offence” is an expression which had not been defined in the Cr.P.C. No attempt is made to define it in the BNSS as well. Hence, we have to go by the judicially settled definition of the said expression. As per a plethora of judicial verdicts, the Supreme Court of India has explained the curial process of taking cognizance of an offence on a “complaint” to mean as under –

On receiving a private complaint, if a Magistrate, after perusing the averments in the complaint and the supporting material, if any, applies his mind for the purpose of proceeding under Section 200 Cr.P.C. and the subsequent provisions of Chapter XV Cr.P.C., he is said to have taken cognizance of the offence. (Vide

1. R.R.Chari Vs The State of U.P – AIR 1951 SC 207 (3 Judges – M. H. Kania – CJI, M. Patanjali Sastri, S. R. Das - JJ). (Paras 3 and 6)

Issuing a search warrant or forwarding the complaint for investigation under Section 156 (3) Cr.P.C., does not amount to taking cognizance of an offence. (Vide para 9)

(In para 9 Chief Justice Kania has bodily extracted and approved the observation made by K. C. Das Gupta – J, then of the Calcutta High Court in Supdt. and Remembrancer of Legal Affairs, West Bengal v. Alani Kumar AIR 1950 Cal. 437). The observation of Das Gupta – J was as follows :-

“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.”

(K.C. Das Gupta of the Calcutta High Court was later elevated to the Supreme Court. The above observation of K.C.Das Gupta – J was decades later again extracted by Arijit Pasayat – J in para 13 of Mohd. Yusuf v. Afq Jahan (Smt.) AIR 2006 SC 705 – Arijit Pasayat, S. H. Kapadia – JJ and in para 19 of Dilawar Singh v. State of Delhi AIR 2007 SC 3234 - Arijit Pasayat, D. K. Jain - JJ.)

2. Narayandas Bhagwandas v. State of West Bengal - AIR 1959 SC 1118 – S. J. Imam, J. L. Kapur - JJ;

"It is, however, argued that in Chari's case, 1951 SCR 312: (AIR 1951 SC 207), this Court was dealing with a matter which came under the Prevention of Corruption Act. It seems to us, however, that that makes no difference. It is the principle which was enunciated by Das Gupta J., which was approved. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under S.200 and subsequent sections of Ch. XV of the Code of Criminal Procedure or under S.204 of Ch. XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.” (Vide end of para 8).

3. Gopal Das Sindhi v. State of Assam - AIR 1961 SC 986 (3 Judges – S. J. Imam, K. Subba Rao, Raghubar Dayal – JJ.); (Vide para 7).

4. Jamuna Singh v. Bhadai Shah – AIR 1964 SC 1541 (3 Judges – B. P. Sinha – CJ, M. Hidayatullah, K. C. Das Gupta – JJ). (Vide Paras 9 and 10).

NOTES BY THE AUTHOR: This K.C.Das Gupta – J is the same Judge who rendered the verdict in AIR 1950 Cal. 437 and which was approved by the Supreme Court in R.R. Chari (Supra – AIR 1951 SC 207). In Jamuna Singh the Magistrate after examining the complainant on oath had forwarded the complaint to the officer-in-charge of the Police Station (SHO) concerned for “instituting a case and report”. The SHO, however, treating the complaint as an FIR, conducted an investigation and submitted a charge sheet before the Magistrate. The Supreme Court treated the order of the Magistrate as one passed under Section 202 (1) Cr.P.C. and not under Section 156 (3) Cr.P.C. since the Magistrate had already taken cognizance of the offence and had examined the complainant before making such order for investigation;

5. Nirmaljit Singh Hoon v. State of West Bengal - (1973) 3 SCC 753 = AIR 1972 SC 2639 – 3 Judges – J. M. Shelat, I. D. Dua, H. R. Khanna – JJ ; (Vide para 22).

6. Devarapalli Lakshminarayana Reddy and Others v. Narayana Reddy - AIR 1976 SC 1672 (3 Judges – R. S. Sarkaria, P. N. Shinghal, Jaswant Singh - JJ ); (Vide Para 14).

7. Mohd. Yousuf v. Afaq Jahan (Smt.) (2006) 1 SCC 627 = AIR 2006 SC 705 – Arijit Pasayat – J. (Vide Para 13 to 15).

8. State of Karnataka v. Pastor P. Raju AIR 2006 SC 2825 = (2006) 6 SCC 728 – G. P. Mathur, Dalveer Bandari – JJ. R. R. Chari (Supra – AIR 1951 SC 207, Narayandas (Supra – AIR 1959 SC 1118 followed). (Vide Para 9)

“An order remanding an accused to judicial custody does not amount to taking cognizance of an offence”. (Vide para 10)

9. Dilawar Singh v. State of Delhi AIR 2007 SC 3234 – Arijit Pasayat, D. K. Jain – JJ. (Vide Para 15 to 21).

10. S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited - (2008) 2 SCC 492 = AIR 2008 SC 1213 – C. K. Thakker, P. P. Naolekar - JJ; (Vide Para 21 to 37).

11. Fakhruddin Ahmad v. State of Uttaranchal (2008) 17 SCC 157 = 2008 Cri.L.J. 4377 SC – C. K. Thakker, D. K. Jain - J; (Vide Para 13 to 17).

12. Mona Panwar v. High Court of Judicature of Allahabad (2011) 3 SCC 496 = 2011 Cri.L.J. 1619 – J. M. Panchal, H. L. Gokhale – JJ; (Vide para 9).

Here a “complaint” was filed under Section 156 (3) Cr.P.C before the Magistrate seeking a direction to the police to register a case and investigate the same. The Magistrate held that this was not a fit case to be referred to the police and asked the complainant to be present for recording his sworn statement under Section 200 Cr.P.C. The Supreme Court approved the action of the Magistrate holding that if on a reading of the “complaint” the Magistrate finds that the allegations therein disclose a cognizable offence and forwarding the “complaint” to the police for investigation under Section 156 (3) Cr.P.C will not be conducive to justice, he will be justified in adopting the course which he took in this case. (Vide para 10).

13. Dr. Subramanian Swamy v. Dr. Manmohan Singh and Another (2012) 3 SCC 64 – G. S. Singhvi, A. K. Ganguly - J; (Vide Para 35)

14. Sarah Mathew v. Institute of Cardiovascular Diseases (2014) 2 SCC 62 = AIR 2014 SC 448 – 5 Judges – P. Sathasivam – CJ, B. S. Chauhan, Ranjana Prakash Desai, Ranjan Gogoi, S. A. Bobde – JJ; (Vide Para 23 to 25). (Decisions at Serial Nos. 1,3,4,10 given above approved).

15. Sunil Bharati Mittal v. CBI (2015) 4 SCC 609 = AIR 2015 SC 923 – 3 Judges – H. L. Dattu – CJ, Madan B. Lokur, A. K. Sikri – JJ ). (Vide Para 46 and 47).

16. Kishun Singh v. State of Bihar (1993) 2 SCC 16 = 1993 Cri.L.J. 1700 – A. M. Ahmadi, N.P. Singh - JJ. Mere application of mind does not amount to taking cognizance of the offence unless the Magistrate does so for proceeding under Section 200 Cr.P.C. (Vide Para 7).

17. CREF Finance Ltd V. Shree Shanti Homes (P) Ltd – AIR 2005 SC 4284 = (2005) 7 SCC 467 – B. P. Singh, S. H. Kapadia – JJ;

“One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out”. (Vide Para 10). See also State of Karnataka V. Pastor P. Raju AIR 2006 SC 2825 = (2006) 6 SCC 728 – G. P. Mathur, Dalveer Bhandari – JJ).

5. Even assuming that the addition of the word “while” in Section 223 (1) BNSS is capable of being understood that cognizance of an offence on a “private complaint” can take place only when the Magistrate actually records the sworn statement of the complainant and his witnesses, still the resultant legal position will be the same.

The main core of the statutory scheme under the Cr.P.C. maintained as such in the BNSS.

6. Just as in Section 204 (1) Cr.P.C, the BNSS also envisages issue of process to the accused under Section 227 (1) only if the Magistrate is of the opinion that “there is sufficient ground for proceeding” and not otherwise. To put it differently, the statutory scheme under the now repealed Cr.P.C. that cognizance of the offence is at the “pre-process stage” and that process to the accused will be issued only if the Magistrate is of the opinion that “there is sufficient ground for proceeding”, is kept intact by the BNSS as well. Both under the Cr.P.C. and the BNSS a “complaint” can be dismissed only for the reason that “there is no sufficient ground for proceeding” and such dismissal can be made only at the post-cognizance stage. (Vide Section 203 Cr.P.C. and Section 226 BNSS). In other words, the guiding principle both under the Cr.P.C. as well us under the BNSS for the Magistrate to move forward by issuing process after taking cognizance of the offence, is the existence or non-existence of “sufficient ground for proceeding”. The BNSS, as in the case of the Cr.P.C. also, contemplates the “appearance” or “production” of the accused only after issuing process to him under Section 227 (1) BNSS (Section 204 (1) Cr.P.C). Chapter XVI Cr.P.C corresponding to Chapter XVII of BNSS, deals with the “Commencement of Proceedings” and the said Chapters begin with the issue of process (summons or warrant) to the accused. The words “when the accused appears or is brought before the Magistrate” occur in Section 238 Cr.P.C. (warrant trial), Section 251 Cr.P.C. (summons case) and Section 209 Cr.P.C. (Sessions offence) and those words relate to the presence of the accused pursuant to the execution of process issued against him. The same is the scheme under Sections 261, 274 and 232 of BNSS as well. The legal position judicially settled by the Apex Court is that at the pre-process stage the accused has no right whatsoever to participate in the proceedings before Court and that even if he per chance happens to be present before Court, he can only watch the proceedings taking place before Court. (Vide Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113 = 1960 Cri.L.J. 1499 – 3 Judges – S. K. Das, J. L. Kapur, M. Hidayatullah – JJ; Chandra Deo Singh v. Prakash Chandra Bose (1964) 1 SCR 639 – 3 Judges - Mudholkar, Syed Jaffer Imam, Raghubar Dayal – JJ; Nagawwa v. Veeranna Sivalingappa Konjalgi (1976) 3 SCC 736 = AIR 1976 SC 1947 – S. Murtaza Fazl Ali, A. C. Gupta – JJ; Sashi Jena v. Khadal Swain (2004) 4 SCC 236 = AIR 2004 SC 1492 – B.N. Agrawal, Y. K. Sabbarwal – JJ; Para 53 of Manharibhai Muljibhai Kakkadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517 – 3 Judges - R. M. Lodha, Chandramauli Kr. Prasad, S. J. Mukhopadhaya – JJ ).

Under Section 190 (1) Cr.P.C. a “private complaint” and a “Police Report” are treated on par for the purpose of taking cognizance. So is the position under Section 210 (1) of BNSS as well. But, when it comes to “private complaint”, the first proviso to Section 223 (1) of BNSS not only makes an unnecessary deviation from Section 200 Cr.P.C, but also discriminates between a “private complaint” and a “police report”.

The pernicious deviation made in the “first proviso” to Section 223 (1) BNSS (the flaw made in the law) with regard to the right of hearing given to the accused.

7. Deviating from Section 200 (1) Cr.P.C., the BNSS in Section 223 (1) has inserted the first proviso which reads as follows—

“Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”

This opportunity of being heard given to the accused is at the pre-process stage and it necessarily pre-supposes a notice to the accused. If the accused is to be heard at this stage, then securing his presence before the Magistrate at the pre-cognizance and pre-process stage, disturbs and dislocates the statutory scheme of issuing process to the accused at the appropriate post-cognizance stage on the Magistrate being satisfied that there is sufficient ground for proceeding. Upon receipt of a notice under the now inserted first proviso an accused may enter appearance before the Magistrate, either in person or through his counsel. The possible options which the accused may then exercise are –

a) an option to cross-examine the complainant and his witnesses whose statements will be (or have already been) taken.

b) an option to adduce both oral and documentary evidence.

c) an option to file a petition under Section 94 BNSS (S.91 Cr.P.C.) for causing production of documents or other materials which support his contentions.

d) an option for a detailed hearing on the materials already on record and subsequently produced or caused to be produced by the accused.

This rigmarole is certainly going to consume the precious time of the Courts as well as that of the parties thereby posing a danger to “speedy trial”. If any of the above requests by the accused is disallowed by the Magistrate, the accused may go up in revision or appeal and get the proceedings before the Magistrate stayed. He may go still higher up in the hierarchy of Courts upto the Supreme Court if his prayer is disallowed. If on the contrary, the request of the accused is allowed by the Magistrate, then it will be the complainant's turn to approach the higher forums. Is this going to promote “speedy justice” guaranteed by Article 21 of the Constitution of India ? Certainly not. We are all aware of the pre-Debendranath Padhi position and post Debendranath position. (Vide State of Orissa v. Debedranath Padhi AIR 2005 SC 359 = (2005) 2 SCC 568 – 3 Judges – Y. K. Sabharwal, D. M. Dharmadhikari, Tarn Chatterjee – JJ.). A clever lawyer may distinguish Debendranath Padhi by contending that the said verdict applies only at the stage of framing charge by the Court. Hence, my sincere request to all concerned is that you should ponder over the question whether the “first proviso” to Section 223 (1) BNSS is a welcome desideratum or not.

Whether opportunity of hearing to the accused under the first proviso of Section 223 (1) BNSS is to be given before or after taking cognizance of the offence.

8. Having said that the “first proviso” to Section 223 (1) BNSS was an unnecessary, if not pernicious deviation from the corresponding provision in the Cr.P.C., let us now examine whether the opportunity of hearing to the accused is to be given before or after taking cognizance of the offence by the Court. There cannot be any controversy that the opportunity of being heard given to the accused under the first proviso to Section 223 (1) of BNSS is for enabling him to oppose the proposed cognizance of the offence. The “first proviso” prohibits the Magistrate from taking cognizance of the offence without giving the accused an opportunity of being heard. Even if we take the extreme view from the employment of the expression “while” in Section 223 (1) BNSS that cognizance of an offence on a “private complaint” takes place only when the Magistrate examines upon oath the complainant and his witnesses and not when he “decides” to proceed under Section 223 BNSS, then also at least before such examination of the complainant and his witnesses, the Magistrate should give the accused an opportunity of being heard. After the Magistrate actually records the sworn statement of the complainant and his witnesses and thereby takes cognizance of the offence, the accused cannot be given an opportunity of being heard only to face a fait accompli. That apart, the accused cannot at the post-cognizance stage argue that cognizance of the offence should not have been taken. If he is so permitted to argue, then it will amount to the Magistrate retracing his step backwards from the post-cognizance stage to the pre-cognizance stage. A criminal Court has no jurisdiction to go back from a particular stage to an earlier stage and if it does so, it would amount to reviewing its own order for which there is no enabling provision in the BNSS or in the Cr.P.C. (Vide Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4676 = (2004) 7 SCC 338 – 3 Judges – N. Santhosh Hegde, S. B. Sinha, A. K. Mathur – JJ; Subramanium Sethuraman v. State of Maharashtra AIR 2004 SC 4711 = (2004) 13 SCC 324 - 3 Judges – N. Santhosh Hegde, S. B. Sinha, Tarun Chatterjee – JJ.)

Even if the “first proviso” to Section 223 (1) BNSS is a welcome deviation from the Cr.P.C., its judicial interpretation is flawed

9. In Basanagouda R. Patil v. Shivananda S. Patil 2024 SCC OnLine Kar.96, interpreting the first proviso to Section 223 91) of BNSS, the Karnataka High Court has observed as follows—

"9. 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 S.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.

10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under S.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." (Emphasis supplied by me).

The observation that cognizance of the offence will be taken only after recording the sworn statement of the complainant and his witnesses and after hearing the accused, is, with due respect, egregiously erroneous.

10. The decision of the Kerala High Court is Suby Antony v. JFCM-III 2025 KHC OnLine 97. Here the Magistrate had issued notice to the accused (according to me correctly) before proceeding to record the sworn statement of the complainant and his witnesses. This procedure adopted by the Magistrate was found to be illegal by the High Court and the Magistrate was directed to record the sworn statements first and then issue notice to the accused. The aforementioned verdict of the Karnataka High Court was followed. The above procedure amounts to putting the cart before the horse. My humble opinion is that the above verdicts, if allowed to stand, will constitute wrong precedents to be followed by all Courts in the district judiciary of the States concerned.

CONCLUSION

11. The insertion of the “first proviso” to Section 223 (1) of BNSS in deviation to Section 200 of Cr.P.C. was uncalled for and opposed to the basic scheme under the BNSS itself. Even if the said “proviso” could be considered as a welcome measure, the judicial interpretation of the “first proviso” by issuing notice to the accused only after recording the sworn statement of the complainant and his witnesses, is preposterous, besides being contrary to settled principles of law.

Author is a Former Judge, High Court of Kerala. Views Are Personal.