Going by publicity announcements surrounding the BNSS both inside and outside Parliament, one of the main reasons for ditching the 1973 procedural code was because it fostered delays in cases. With the incoming BNSS, the government boldly announced that cases will not take longer than two years to conclude.
Not many criminal lawyers took that seriously upon reading the BNSS and seeing that it had retained the older model almost entirely. And, when it comes to cases instituted upon private complaints, lawyers had realised that the changes made to the old scheme by Section 223 of the BNSS would decidedly have the opposite effect.
This post looks at what has been the effect of Section 223 on the ground in the year or so that has gone by since introduction of the BNSS in July 2024. My aim is to show two things here. First, explain the change made by BNSS to the older regime, and how the new scheme goes against the statute's professed reformist logic. Second, show how courts have dealt with the clause and how this engagement (so far) has only complicated the law further and made trials even slower.
What did the BNSS Change in Private Complaint Cases
Even with introduction of the BNSS, Indian criminal procedure continues to follow a funnelling model for proceeding with a case. There are multiple stages of judicial scrutiny over the same matter, which increase in intensity with each successive stage that a case passes. The stages are: (1) Cognizance --> (2) Summoning --> (3) Charge and --> (4) Trial. In theory, this ensures that only the 'good' cases go ahead for trials, and winnows out the 'bad' cases without wasting more time on them.
There was never a doubt about hearing the accused at the stages of charge and at trial. There was also no doubt about not hearing either complainant or the accused at the stage of cognizance. Doubts existed with respect to hearing an accused at the stage of summoning in private complaint cases, where the complainant had a clear right of audience. A decade of uncertainty around this issue was clarified by the Supreme Court decisively holding in 2002 that an accused had no right of audience at this stage and could prefer appellate remedies if so desired [see here for a longer discussion].
This scheme made some sense. Cognizance entailed no hearing as such and only required judicial scrutiny of the file to determine if something was totally amiss. Summoning came later, where a court would hear the complainant to determine if there were reasonable grounds to summon the proposed accused. Then you had a full-blown hearing at charge with both parties engaging with the court, and finally trial where the accused could even introduce evidence (not permitted earlier).
Now, the BNSS has upended this scheme, with Section 223(1) stating as follows:
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
Compare Section 223 with Section 200 of the old code, and you will see that the "provided that" part was not there earlier.
Why do this? No answers can be found in the reports of the parliamentary committee or in parliament. No reports of the super secretive Criminal Law Reforms Committee have yet been published (maybe when the BNSS is repealed, perhaps) to know if that Committee had sponsored this amendment. If we were to go and assume reasons, then the only probable one is that this enables winnowing out the frivolous cases. This argument may seem ok if the cognizance stage is viewed in isolation, but makes no sense when we look at the system as a whole which provides ample opportunity to wean the bad cases out later.
The need to ask for a reason behind this change comes only because this is so obviously contradictory to the entire point of making the process move faster. Earlier, cognizance was a non-affair. Now, it will take many more dates of hearing, as an accused will first have to be called to court and then heard as well. The resulting delay is precisely why the Supreme Court has now gone ahead and willy-nilly excluded an entire set of criminal cases relating to dishonour of cheques from this regime [discussed here].
A perplexing reform if there ever was one.
Judicial Engagement with Section 223 and the Eternal Mystery of Cognizance
It is not uncommon to find mountains of paper being spent by thinkers about rather banal, or if not banal then seemingly inconsequential issues framed as life's eternal mysteries. Most people, other than those thinkers, would probably find the exercise a bit of a waste of time. The same could be said about how the idea of taking "cognizance" of an offence continues to occupy so much space in Indian criminal procedure. A lot of the blame for this lies with the Supreme Court which has complicated the issue giving chances for wealthy litigants to contest this non-event in the life of a case all the way up to the apex court, and win! [see here]
The already existing plethora of precedent on the issue can be divided across three issues: (i) when does the right of hearing accrue, (ii) what is the extent of the right, and (iii) in what kind of cases does it apply.
Lets look at each of these areas in turn. The first issue arises because Parliament did not bother to change the active voice ("while taking cognizance of an offence ...") in the phrasing of old Section 200 while inserting this new right of hearing through an addendum. This meant that the old metaphysical quandary of when did the court actually take cognizance remained unresolved in the statute, while giving a right of hearing to an accused before taking cognizance.
This issue had already led to litigation in the past, creating two streams of case law that were never quite fully resolved. One view was that cognizance can be taken the first time a judge took up the case file, before examining the complainant and other witnesses, upon being satisfied that ingredients of the offence exist. Another view was that cognizance was taken at some stage during examination of the complainant or at its end, but not upon mere receipt of the case file. As you can see, both views entail different consequences for the pre-cognizance right of hearing — in the former, it takes place before the complainant is examined and the court only has the case file to go by, and in the latter it takes place after the witnesses have also been examined giving more material on record.
The two views also have a bearing on the second area identified above: what is the extent of the right of hearing for an accused. Is the accused simply to be asked questions without being given any document? Can the accused be meaningfully heard by a court without having examined the complainant? If the accused is to be heard with supplying documents, then can the accused ask for time to study the same and then make detailed submissions; even go so far as to seek (or supply) copies of additional documents that may be missing in the complaint? Does a court need to pass a detailed order dealing with all the submissions of an accused also at this stage?
All of these issues could have been dealt with if Parliament thought through the new right that it was conferring. Maybe debates in Parliament would have helped. But that ship has sailed, for now at least. This has led to courts answering the above questions, in a surprisingly consistent tone for the most part without dealing with the unresolved issues that their interpretive choices are creating:
- When does the right accrue? Almost all High Courts [Kar HC, Delhi HC, All HC, Ker HC, Gau HC] have so far held that before inviting the accused to be heard, the court should have examined the complainant and other any other witnesses. In doing so, they have clearly gone with the view that cognizance is not taken merely upon receipt of a private complaint case, but have changed the inherent fluidity of that view by fixing the stage of cognizance as necessarily after the examination of witnesses.
- To what extent does the right accrue? Again, High Courts have stressed on the innovation made by the BNSS and reasoned that Parliament could not have conferred a token right of hearing, and that the clause must be interpreted to confer a 'meaningful' right of hearing. This entails sharing papers with the accused and dealing with their objections before taking cognizance [most clearly mentioned by the All HC here]. At the same time, there is no discussion of why a court must pass a lengthy order at this nascent stage when such detailed orders need not be passed when summoning an accused and framing charges.
- As yet, issues of whether an accused can ask for copies of materials seemingly missing in the complaint or show documents seemingly suppressed by the complainant do not appear to have reached High Courts, but they are certainly being litigated at the trial courts. It may be noted that one of these issues was flagged before the Supreme Court (here) but it was not dealt with at the time.
The third area of what cases does this new pre-cognizance right extend to was interesting given the drafting of the clause, but has been made more interesting by developments in the Supreme Court. The BNSS retained the old 1973 code's approach of treating complaints lodged by public servants disclosing commission of crimes differently from complaints by ordinary citizens. While there is a need to examine the ordinary citizen complainant, this requirement is dispensed with if the public servant is filing a complaint as part of their official duty. You would think, then, that the need for any pre-cognizance hearing would also be eschewed for such scenarios, seeing as they are more similar to cases lodged by police than to cases lodged by private complainants.
The Supreme Court when presented this question in context of complaints by the Directorate of Enforcement filed under the Prevention of Money Laundering Act 2002 held otherwise and, surprisingly, without any real contest by the government. This has meant that the entire gamut of cases which are filed on a complaint by public servants — there really are several such statutes — now have an additional step in the trial process, elongated them further. Within this area, the Supreme Court is yet to address the additional issues that had been flagged at the outset by the government such as what happens when a supplementary complaint arraigning more people is filed, and what kind of material can be considered at this stage. The supplementary complaint issue has reached High Courts though, where orders have extended this pre-cognizance right of hearing to such scenarios as well.
Whether the Supreme Court will remain wedded to this approach of extending the general law as found in the BNSS to special laws where cases are instituted on private complaints is not a certainty anymore, though. As mentioned above, the Court recently excluded offences of cheque dishonour from this regime on the logic that these were under a special law which will not attract general law, without really any reasoning. Considering that the exclusion of cheque dishonour cases was more based in pragmatism than legal reasoning, it will not be surprising to see some refinement in the Court's approach if serious speed-bumps are perceived in other areas.
An interesting follow-on issue which the extension of pre-cognizance hearings for cases lodged on complaints by public servants is a constitutional one. If this right of hearing accrues to a case investigated by some law enforcement agencies, then why not all? In other words, why should the same right not be extended to police cases? Surely one cannot say that frivolous or even downright vexatious cases are not filed as a result of investigations by police. So if the idea was to ensure conferring a meaningful opportunity to an accused person to prevent them from being dragged into vexatious litigation, and now the Supreme Court has clarified that it extends to even cases investigated by law enforcement agencies, then do we not have an Article 14 problem on our hands?
Section 223 BNSS has thus ensured that cognizance does not pale into irrelevance as we carry on in the 21st Century but that it gives rise to much more litigation, reopening old questions and creating new ones. Nobody but the lawyers are rejoicing at the prospect.
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