Court Emphasizes Mandatory Hearing of Accused Before Taking Cognizance of Offence Under New Criminal Procedure Law
In a landmark judgment delivered on September 7, 2026, the Tripura High Court quashed an order passed by the Chief Judicial Magistrate (CJM), Agartala, for taking cognizance of an offence without affording the accused an opportunity of being heard, in violation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The petitioners, Sri Dipankar Majumder and another, challenged the CJM's order dated July 12, 2024, which took cognizance of a complaint filed by Kotak Mahindra Bank Limited, alleging offences under several sections of BNSS.
The Court meticulously analyzed the transitional legal framework, noting that the BNSS replaced the Criminal Procedure Code (CrPC) effective July 1, 2024. Unlike the erstwhile Section 200 of the CrPC, the new Section 223 of BNSS expressly mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. This newly introduced proviso underscores the legislature's intent to safeguard the accused's right to a fair hearing at the earliest stage of the criminal process.
The petitioners contended that the CJM's order directly took cognizance on the complaint day itself, without hearing the accused, a procedural lapse rendering the order illegal and an abuse of court process. The State's counsel argued that no examination of complainant or witnesses was conducted by the CJM and the case was merely transferred to another Magistrate, contending that this negated any irregularity.
Rejecting the State's submission, the High Court relied heavily on the Supreme Court's ruling in Kushal Kumar Agarwal v. Directorate of Enforcement (2025), which emphasized the mandatory nature of hearing the accused prior to cognizance under Section 223 BNSS. The Court also distinguished precedent cited by the State which predated BNSS and did not address the newly inserted proviso.
The Court held that the failure to comply with Section 223's mandatory proviso vitiates the cognizance order, making it liable to be set aside. It directed the CJM to rehear the matter afresh, ensuring compliance with the BNSS mandate by affording the accused an opportunity to be heard before taking cognizance. The judgment was circulated to all Criminal Courts across Tripura to reinforce adherence to the procedural safeguards enshrined in BNSS.
This judgment serves as a crucial reminder to Magistrates and criminal courts nationwide regarding the elevated procedural protections introduced by BNSS, reinforcing the principle of natural justice at the inception of criminal proceedings.
Bottom Line:
Magistrate is obligated under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, to provide an opportunity to the accused to be heard before taking cognizance of an offence on a complaint.
Statutory provision(s): Bharatiya Nagarik Suraksha Sanhita, 2023 Section 223, Section 2(h), Section 212, Section 528
Sri Dipankar Majumder v. State of Tripura, (Tripura) : Law Finder Doc Id # 2980553
