The Delhi High Court has referred to a larger bench a key question concerning the interpretation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, particularly the scope of its proviso mandating a pre-cognizance hearing for the accused.

The reference arose in a quashing petition challenging an order of the trial court in a criminal defamation complaint. The petitioner contended that the Magistrate proceeded to record pre-summoning evidence without first affording an opportunity of hearing to the accused, as required under the proviso to Section 223(1) BNSS.

Justice Swarana Kanta Sharma, while considering the plea, noted a divergence of judicial opinion on the stage at which “cognizance” is taken. In an earlier decision, the Court had disagreed with views taken in certain High Court rulings which treated recording of the complainant’s evidence as a step prior to cognizance. The Court, prima facie, opined that cognizance is taken when the Magistrate applies judicial mind to proceed under Section 223 BNSS, and that examination of the complainant follows thereafter.

Given the significance of the issue and its implications for procedural safeguards in complaint cases, the Court referred the matter to a larger bench for authoritative determination.

The Court also granted liberty to the petitioner to press for a stay of the ongoing criminal defamation proceedings before the larger bench.

Appearances: 
For the Petitioner: Mr. Arjun Syal, Mr. Akhilesh Wahal, Mr. Rohit Kumar, Mr. Naman Verma, Mr. Vanshika Bhati, Advocates.
For the Respondent: Mr. Maninder Singh, Sr. Advocate along with Ms. Smriti Asmita, Mr. Rahul Pandey, and Ms. Janvi Narang, Advocates

Mr. Amit Prasad, Adv alongwith Mr. Anirudh Krishan Gandhi, Ms. Sanya Sud and Ms. Megha Khandelwal, Advocates for R-2.