Criminal Law • BNSS • Complaint Cases • Cognizance
Supreme Court: an accused must be heard before cognizance on a complaint under Section 223 BNSS
The Supreme Court has now authoritatively clarified one of the most important procedural changes introduced by the Bharatiya Nagarik Suraksha Sanhita, 2023. In Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, decided on 19 May 2026, the Court held that the first proviso to Section 223(1) BNSS is mandatory and substantive in nature.
The consequence is significant: where cognizance is taken on a complaint without first giving the accused an opportunity of being heard, the cognizance order is liable to be treated as void ab initio.
The Court also linked this statutory protection to the accused’s right to a fair trial under Article 21 of the Constitution of India. The judgment therefore goes beyond treating Section 223 as a mere procedural formality.
What does Section 223(1) BNSS require?
Section 223 deals with examination of the complainant in a complaint case. Its first proviso states that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
This is a major departure from the former Section 200 CrPC framework. Under the old Code, the proposed accused ordinarily had no right of audience at the stage when the Magistrate considered whether to take cognizance on a complaint. The BNSS has changed that position for complaint-based cognizance.
The official statutory text can be checked at India Code — Section 223 BNSS.
Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519
In Parvinder Singh, the prosecution complaint under the Prevention of Money Laundering Act, 2002 had been filed before the BNSS came into force, while the cognizance order was passed after the BNSS commenced on 1 July 2024. The accused had not been afforded the opportunity contemplated by the first proviso to Section 223(1).
The Supreme Court, speaking through Justice M.M. Sundresh for the Bench also comprising Justice Nongmeikapam Kotiswar Singh, examined the scope of Section 223, the relationship between the BNSS and the PMLA, and the saving provision in Section 531 BNSS.
The Court held that the first proviso to Section 223(1) is not merely procedural. It confers a substantive right upon the accused to be heard before cognizance and forms part of the fair-trial protection under Article 21. Because the statutory language uses the word “shall”, compliance is mandatory.
The Court consequently set aside the cognizance order and directed that the accused be given an opportunity of hearing from the stage of cognizance.
The official Supreme Court judgment is available here: Supreme Court — Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519.
The 2025 foundation: Kushal Kumar Agarwal v. Directorate of Enforcement
The Supreme Court had already addressed the Section 223 proviso in Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 INSC 760. In that case, a prosecution complaint under Section 44(1)(b) of the PMLA had been filed after the BNSS came into force.
The Court held that the first proviso to Section 223(1) places an embargo on taking cognizance without giving the accused an opportunity of being heard. The cognizance order was set aside on that ground and the matter was remitted for hearing at the cognizance stage.
Parvinder Singh carries the principle further by expressly characterising the right as substantive, mandatory and connected with Article 21, and by holding that non-compliance vitiates the cognizance order itself.
Section 210 and Section 223 must be read together
Section 210 BNSS identifies the sources from which a Magistrate may take cognizance. A Magistrate may take cognizance:
- upon receiving a complaint of facts constituting an offence;
- upon a police report, including one submitted electronically; or
- upon information from a person other than a police officer, or upon the Magistrate’s own knowledge.
The Section 223 pre-cognizance hearing requirement is specifically situated in the complaint procedure. It should therefore not be mechanically transplanted into every police-report cognizance case under Section 210(1)(b).
The procedural source of cognizance matters.
Does Section 223 apply to police charge-sheet cases?
The first proviso to Section 223(1) arises in the chapter dealing with complaints to Magistrates and is attached to examination of the complainant. Its direct application is therefore to complaint-based cognizance, not ordinary cognizance on a police report under Section 210(1)(b).
Practitioners should first identify whether the case has reached the court through:
- a private complaint;
- a statutory complaint by an authorised authority under a special enactment;
- a police report/charge-sheet; or
- some other legally recognised mode of cognizance.
That classification determines the procedure that follows.
Does Section 223 apply to complaints under special laws?
Potentially yes, unless the special statute expressly excludes or overrides the BNSS procedure.
This is particularly important because Section 210(1)(a) expressly recognises complaints filed by persons authorised under special law. In the PMLA context, the Supreme Court has held that the ordinary complaint-stage provisions operate where the special statute does not displace them.
The correct inquiry is therefore not whether the case arises under a special statute in the abstract, but whether that statute contains a contrary procedural regime that excludes the relevant BNSS provision.
What is the scope of the accused’s hearing?
The pre-cognizance hearing is not a full criminal trial. The court is still deciding whether cognizance should be taken on the complaint placed before it.
The accused’s submissions should ordinarily focus on matters legally relevant to that stage, including:
- whether the complaint discloses the ingredients of the alleged offence;
- whether the complaint is barred by a statutory cognizance restriction;
- whether mandatory sanction is absent;
- whether territorial or subject-matter jurisdiction is lacking;
- whether the complaint is barred by limitation;
- whether the special statute excludes ordinary BNSS complaint procedure;
- whether the accused has been impleaded without any specific factual role;
- whether the material relied upon by the complainant, taken at its face value, makes out the offence alleged.
The hearing should not normally be converted into a mini-trial requiring adjudication of disputed defence evidence at the cognizance stage.
What happens if cognizance was taken without hearing the accused?
After Parvinder Singh, the defect is substantially more serious than a routine procedural irregularity. The Supreme Court has held that cognizance taken without compliance with the first proviso to Section 223(1) is void ab initio.
Accordingly, an accused should examine:
- the date on which the complaint was filed;
- the date on which cognizance was actually taken;
- whether BNSS or the repealed CrPC governs that stage in light of Section 531;
- whether notice or any meaningful opportunity of hearing was given before cognizance;
- the exact wording of the cognizance order;
- whether the case arises from a complaint or police report;
- whether a special enactment contains an overriding procedure.
The challenge should be framed around the jurisdictional and statutory defect identified by the Supreme Court rather than as a vague allegation of violation of natural justice.
Section 531 BNSS: transitional cases require stage-specific analysis
Section 531 repeals the CrPC but saves certain pending appeals, applications, trials, inquiries and investigations so that they may continue under the old Code.
Parvinder Singh demonstrates why the transition cannot be decided solely by asking when the underlying offence occurred or when the complaint was first presented. The court must identify the particular proceeding or procedural stage that was pending immediately before 1 July 2024 and determine whether Section 531 saves that stage under the CrPC.
This can be decisive where a complaint was filed before 1 July 2024 but cognizance was taken later.
Complaint against a public servant: Section 223(2) adds further safeguards
Section 223(2) creates an additional regime for complaints against a public servant concerning acts allegedly committed in the course of official functions or duties.
The Magistrate cannot take cognizance on such a complaint unless:
- the public servant is given an opportunity to make assertions regarding the situation that led to the alleged incident; and
- a report containing the facts and circumstances is received from the officer superior to that public servant.
These requirements operate in addition to any separate sanction requirement that may arise under Section 218 BNSS or another special statute.
Cognizance is different from issue of process
A frequent drafting mistake is to treat “taking cognizance” and “summoning the accused” as the same judicial act. They are conceptually distinct.
Cognizance concerns the court applying its judicial mind to the alleged offence for the purpose of proceeding under the criminal process. Issue of process is governed subsequently by Section 227 BNSS where sufficient ground for proceeding exists.
Between those stages, the complaint procedure may involve examination under Section 223, inquiry or investigation under Section 225, and possible dismissal under Section 226.
For the full complaint-stage procedure, see Private Criminal Complaint Under BNSS: Sections 210, 223, 225, 226 & 227 Procedure.
Pre-cognizance hearing versus pre-summoning inquiry
The Section 223 hearing and a Section 225 inquiry serve different purposes.
| Stage | Provision | Core purpose |
|---|---|---|
| Pre-cognizance hearing of accused | Section 223(1) proviso | Mandatory opportunity before cognizance on a complaint |
| Examination of complainant | Section 223(1) | Recording complainant and witnesses on oath, subject to statutory exceptions |
| Postponement/inquiry before process | Section 225 | Determine whether sufficient ground exists for proceeding |
| Dismissal | Section 226 | Dismiss complaint where no sufficient ground exists |
| Issue of process | Section 227 | Summons/warrant after sufficient ground is found |
What should a pre-cognizance objection contain?
A focused objection should identify the court, complaint number, statutory source of the complaint, date of filing, alleged offences and the precise issue on which cognizance is opposed.
Depending on the case, the objection may address:
- absence of essential offence ingredients;
- statutory bar to cognizance;
- absence of sanction;
- lack of territorial jurisdiction;
- limitation;
- absence of legally attributable role;
- special-law inconsistency or overriding provision;
- Section 531 transition issue;
- complaint documents which negate rather than establish the alleged offence.
The objection should remain calibrated to the cognizance stage. Overloading it with disputed defence evidence can obscure the core legal defects.
Can an accused waive the Section 223 right?
Parvinder Singh characterises the statutory requirement as mandatory and substantive. That makes it unsafe to assume that silence or later participation automatically cures a cognizance order passed without the mandated opportunity.
However, the procedural consequence in a particular matter may still depend on facts including whether an actual hearing was afforded, what was argued, the governing special statute, and the stage at which the objection is raised.
The safest course is to raise the Section 223 objection at the earliest available opportunity and place the relevant chronology on record.
Can the Magistrate simply issue notice and then take cognizance?
The statutory requirement is an opportunity of being heard, not merely mechanical service of paper. A defensible order should reflect that the accused was afforded the opportunity and that the court considered the legally relevant submissions before deciding whether to take cognizance.
A notice without a meaningful opportunity to present submissions may not satisfy the substance of the safeguard recognised in Parvinder Singh.
How does this affect complainants?
The ruling does not extinguish the complaint remedy. It changes the procedural sequence and increases the importance of presenting a legally complete complaint from the outset.
A complainant should therefore ensure that:
- the complaint pleads every necessary ingredient of the offence;
- the role of each accused is separately stated;
- jurisdiction is clearly pleaded;
- sanction and limitation issues are addressed;
- supporting documents are properly identified;
- electronic material is preserved in admissible form;
- the complaint anticipates threshold objections likely to arise at the Section 223 hearing.
How does this affect accused persons?
For an accused, the first proviso to Section 223 creates an early statutory opportunity to prevent an unsustainable complaint from crossing the cognizance threshold.
The strongest objections are generally legal and threshold-based. A properly framed pre-cognizance submission may avoid years of unnecessary criminal proceedings where the complaint is barred, jurisdictionally defective, unsupported by statutory ingredients or founded on a legally impermissible theory of liability.
Key takeaways from Parvinder Singh
- The first proviso to Section 223(1) BNSS confers a right of hearing on the accused before cognizance on a complaint.
- The Supreme Court has characterised the right as substantive, not merely procedural.
- The safeguard is linked to Article 21 and the right to a fair trial.
- The word “shall” in the proviso is mandatory.
- Cognizance taken without complying with the proviso is void ab initio.
- The procedural source of the case matters: complaint cognizance is distinct from police-report cognizance.
- Special statutes must be examined to see whether they override or preserve the BNSS complaint procedure.
- Section 531 transition issues must be analysed stage by stage.
Frequently asked questions
Is a hearing to the accused compulsory before cognizance under Section 223 BNSS?
Yes, where cognizance is being taken on a complaint to which Section 223 applies. The Supreme Court in Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, held the requirement to be mandatory and substantive.
What happens if the accused was not heard?
The Supreme Court has held that cognizance taken without compliance with the first proviso to Section 223(1) is void ab initio.
Does Section 223 apply to a police charge-sheet?
The first proviso forms part of the complaint procedure under Section 223. Ordinary cognizance on a police report is separately recognised under Section 210(1)(b), so the source of cognizance must first be identified.
Can Section 223 apply in PMLA proceedings?
Yes, the Supreme Court has applied the complaint-stage safeguard in PMLA proceedings where the governing PMLA provisions did not exclude the relevant general criminal-procedure framework.
Is Section 223 the same as old Section 200 CrPC?
It broadly occupies the complaint-examination field formerly covered by Section 200 CrPC, but the new accused-hearing proviso is a material change and had no equivalent in Section 200 CrPC.
Is the Section 223 hearing a full trial?
No. It is a threshold hearing before cognizance. The court is not finally deciding guilt or innocence at that stage.
Conclusion
Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, has transformed the first proviso to Section 223(1) BNSS from a newly introduced procedural clause into a clearly enforceable substantive safeguard. A complaint court cannot treat the accused’s pre-cognizance hearing as optional.
For current complaint litigation, lawyers should separately analyse Section 210 cognizance, Section 223 hearing, the Section 225 inquiry, Section 226 dismissal and Section 227 process. Where cognizance has already been taken without the mandated hearing, the order should be examined in light of the Supreme Court’s declaration that such non-compliance vitiates cognizance at its foundation.
This article is for legal education and general information only. It is not solicitation or case-specific legal advice. The applicable procedure depends on the source of cognizance, date of the proceeding, special statute, sanction requirements, jurisdiction and the precise procedural record.