Pre-Cognizance Hearing Of Accused : Changes Under Bharatiya Nagarik Suraksha Sanhita (New CrPC) On Magistrate's Cognizance Of Complaints

Taking cognizance of an offence is the first and foremost step towards trial. Cognizance is considered as judicial response to a crime or the 'initiation of the proceedings' of an alleged offence by the Magistrate. Cognizance literally means knowledge or notice, and taking cognizance means taking notice, or becoming aware about the alleged commission of an offence.

The Bhartiya Nagrik Suraksha Sanhita, 2023 (“BNSS”) that seeks to replace the existing Code of Criminal Procedure, 1973 (“Code”) made certain changes regarding cognizance of the alleged offence stage of cognizance proceedings before the magistrate. A major change is that pre-cognizance opportunity of hearing is being granted to the accused before taking cognizance of an offence.

Understanding 'Cognizance' and Changes Made Under BNSS2

The Code as well as BNSS doesn't define the expression “cognizance of an offence” or “taking cognizance of offence”. However, the judicial pronouncements have settled the meaning of the expression. Cognizance is said to have been taken when the magistrates apply their mind to the alleged commission of an offence, in order to proceed towards enquiry and trial. In other words, it is an initiation of a judicial proceeding against an offender or taking judicial note of an offence.

The existing legal provision, Section 200 of the Cr.P.C., mandates that the magistrate must scrutinize the complainant and any witnesses when taking cognizance of a non-cognizable offense based on a private complaint. A recent amendment to this provision introduces a new condition, barring the initiation of cognizance in complaint cases without providing the accused with an 'opportunity of being heard.' Section 223 of BNSS describes the procedure regarding examination of complainant, where sub-section 1 reads as: -

“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 shall be taken by the Magistrate without giving the accused an opportunity of being heard.”

In other words, the new law put a mandatory requirement for the magistrate to provide an opportunity of hearing to an accused before taking cognizance of an offence based on the complaint made to the magistrate under Section 210 of BNSS2 (previously Section 190 Cr.P.C.). The old provision, simply states that the magistrate may take cognizance of an offence upon the complaint filed by the complainant before the magistrate, however, the new provision added a caveat for the magistrate to not take cognizance without providing opportunity of hearing to an accused.

What are the Implications of providing pre-cognizance hearing to an accused?

It is worthwhile to mention that cognizance does not involve any formal action. It is a mere application of judicial mind to the suspected commission of an offence. When a judicial authority carefully examines the content of the complaint or charge-sheet to ascertain whether the allegations reveal the commission of an offense, and subsequently decides to proceed, it is considered that the cognizance has been taken. Right to hear an accused at a cognizance stage is provided as a statutory right to an accused for the first time in the new law. Because until now, the old provision only grants the opportunity to an accused to be heard during the stage of framing of charges and make submissions regarding commission of a crime. Undoubtedly, the new provision provides a layer of protection to an accused in the form of right to be heard before taking a cognizance by a magistrate, however this might have certain implications: -

1. Over-burdening Judicial Work: Under the BNS2, the Magistrate is mandated to hear an accused in a complaint case before taking cognizance of an offence. However, the specific details of this hearing process remain unspecified. Therefore, making a mandatory requirement of pre-cognizance hearing of an accused may increase the judicial work of the court.

2. Chances of Duplicity of Proceedings at a pre-trial stage: Providing an opportunity of hearing to an accused during the stage of cognizance expands the scope of the hearing. The Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 held that accused individuals lack the right to present any material, as cognizance is based solely on the charge sheet or complaint, therefore a parallel hearing before the framing of charges, would not only undermine the object and purpose of taking cognizance but also renders the subsequent stage, namely the framing of charges futile.
3. Increased Section 582 Petitions: Section 582 of BNSS replaces Section 482 of Cr.P.C., that discusses the inherent powers of the High Court to make such order as may be necessary to give effect to any order under this Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Providing an opportunity of hearing to an accused at the cognizance stage will entail an order of a magistrate i.e., either taking cognizance or refusing to take cognizance. Such an order of the magistrate is open for challenge under Section 582 of BNSS from the complainant as well as the accused. Hence, the new law might over-burden the High Court with increased Section 582 petitions, when the courts are already over-loaded with crores of pending cases at disposal.

Also Read other articles on new criminal laws :

Admissibility Of Electronic Evidence Under Bharatiya Sakshya Adhiniyam (New Evidence Act)

Registration Of FIR Under The Bharatiya Nagarik Suraksha Sanhita (New CrPC)

Major Changes Introduced by Bharatiya Nyaya Sanhita

Bharatiya Nagarik Suraksha Sanhita (New CrPC Bill) Allows Police Custody After First 15 Days Of Arrest

New Criminal Laws Continue Colonial Logic, Expand Police Powers : Prof.Anup Surendranath

Click here to read the Bharatiya Nyaya Sanhita 2023 (new IPC)

Click here to read the Bharatiya Nagarik Suraksha Sanhita 2023 (new CrPC)

Click here read the Bharatiya Sakshya Bll 2023 (new Evidence Act)