[This Article is authored by Preeti Talreja, a 4th year student at Hidayatullah National Law University]

Introduction

The overhaul of India’s criminal justice system in 2024 was meant to be a structural reform aimed at delivering justice, not just punishment. Recently, on September 18, 2025, the Hon’ble Supreme Court of India in the case of Indra Jeet Singh & Anr. vs. The State of Uttar Pradesh & Anr.quashed the criminal proceedings in a matter which was essentially a civil dispute over payment of a motor vehicle. The investigation concluded that no offense has been committed but the Magistrate still took cognizance of the offence and issued summons which forced the accused into a prolonged trial. In its judgment, the Supreme Court strongly discouraged using the pressure of criminal prosecution to settle civil disputes and called it an “abuse of process of law.” Such cases are a stark reminder of the sad reality of our legal system where for many people the process itself becomes the punishment regardless of the final judgment.  

It is such abuse of process that the controversial proviso to Section 223(1) of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 seeks to prevent. Section 223, i.e., examination of complaint,  introduces a radical change in the existing procedure by granting right to be heard to the  accused even before a Magistrate can take cognizance of the complaint. Under the erstwhile CrPC, the accused had no role at this stage because cognizance was an ex parte process based on the complaint. However, the central question which arises here is that does this proviso serve as a much-needed shield for the innocent against malicious prosecution or is it a sword handed to the guilty to delay the process before a trial can even begin.

Proviso to Section 223(1) – A Trial Before Cognizance

Section 200 of the erstwhile Code of Criminal Procedure, 1973 provided for “examination of complaint” wherein the initiation of a case from a private complaint was strictly ex parte and was conducted in the absence of accused. When a private complaint was filed, the Magistrate had a duty to examine the complainant and their witnesses to determine if a prima facie case exists. The whole emphasis was on the alleged offence and not the offender. The accused remained a non-entity until after the court was convinced with the initial evidence and issued a process (either a warrant or a summons) against them.

Section 223 of BNSS reverses this established procedure. While the basic requirement of examining the complainant and witnesses remains the same, it introduces a new proviso which states that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.” In short, the accused now gets a chance to argue that the case should be dismissed before it is even formally registered.

The Argument for: A Shield Against Malicious Prosecution?

It may be argued that this proviso is a necessary safeguard against the misuse of the legal system because “process is the punishment” is a grim reality in India where criminal cases take years and lead to harassment and reputational harm to the accused even if he is acquitted. A pre-cognizance hearing would help in filtering out false complaints before they cause irreparable harm. This is particularly relevant where civil disputes  are given a “criminal colour” to harass opponents. Section 223 could potentially stop such cases at the very outset and save time from a trial.

The Argument Against: A Recipe for Procedural Delay?

On the other hand, this opportunity of being heard could turn into a mini-trial, thereby adding a new layer of litigation that could further delay the trial. Additionally, the vagueness of this provision is a fatal flaw. The BNSS is silent on the scope of this hearing. It does not provide grounds on which the accused argue. A question arises as to whether the accused can adduce their own evidence at this stage or is there a time limit for this hearing. Due to these loopholes, the litigants could prolong hearings for months, filing extensive applications and challenging every piece of evidence before the case is even formally registered. Magistrates’ courts, already facing immense backlogs, will now have an additional, mandatory hearing stage for every private complaint. This burden is now extending to specialized courts as well, with the Delhi High Court in Lakshay Vij v. ED and the Supreme Court in Kushal Kumar Agarwal v. ED both confirming that even complaints under the Prevention of Money Laundering Act (“PMLA”) must adhere to the pre-cognizance hearing mandate.

This provision is challenged before the Supreme Court of India in the case of Mannargudi Bar Association v. UOI & ors. being violative of Article 14 of the Indian Constitution. This provision treats accused individuals unequally as it grants a hearing to those accused in a private complaint but denies the same right to the accused named in a FIR. This unequal treatment is the basis of a constitutional challenge. Furthermore, the provision logically requires an identifiable accused to whom notice can be sent. However, in many common complaints, such as theft, cheating, or cybercrime, the identity of the perpetrator is often unknown at the time of filing. In these scenarios, the provision becomes practically unworkable. A genuine victim could be blocked from seeking justice simply because the offender has not yet been traced, which contradicts the fundamental purpose of cognizance. Another problem is the applicability of Section 223 to cases filed just before the July 1, 2024- the cut-off date. In Parvinder Singh v. Directorate of Enforcement, the Supreme Court has issued notice on the question of whether the new provision applies if a complaint was filed under the CrPC but cognizance was taken after the BNSS came into force. This uncertainty over retrospective application is a clear example of the procedural vagueness.

A Comparative Perspective

In India, we follow an adversarial system of justice. However, to properly evaluate the potential impact of this new proviso, it is important to examine inquisitorial and other adversarial jurisdictions, which have different mechanisms in place to prevent malicious proceedings in complaint cases.

FRANCE

France follows an inquisitorial system of justice and views criminal proceeding as an official inquiry. A neutral investigating judge (Juge d’instruction) conducts pre-trial investigation similar to the newly introduced preliminary enquiry in India which is done by a police officer. The purpose of this is to gather evidence for and against the accused. Most importantly, the accused is a part of this investigation but not as a party to this investigation. He is a subject of the judicial inquiry.

The major difference between the French system and the Indian system is that the French pre-trial investigation is more objective in nature as it is based on evidence gathering by a judicial officer. In contrast, proviso to Section 223(1) mandates that the Magistrate must decide to proceed on the basis of arguments presented in a hearing by the accused and not investigation. The scope of this hearing is not specified which further makes this provision ambiguous.

AUSTRALIA

In New South Wales, Australia, committal hearings under Chapter 3 of the  Criminal Procedure Act 1986 (“NSW”) are also an important check on the criminal justice system inasmuch as any evidence brought forth by the prosecution will be tested for its sufficiency in supporting a full trial before a higher court.

Australia has a system where the accused takes an active part in testing prosecution’s case particularly by cross examining the witnesses under sections 82–84 of the Act. In contrast, Section 223 of the BNSS only grants the accused a right to be heard before the Magistrate takes cognizance but it does not allow cross examination of the complainant of witnesses at this stage. This effectively reduces the “right to be heard” to mere formality.

The Overlooked Alternative

The examination of the French and Australian systems reveals that while the legislative intent behind Section 223 is sound, India’s method is flawed. The idea is not to copy the French or Australian method but to assess the need for a structured and unambiguous provision. The most frustrating part of this entire debate is that a far more practical and effective filtering mechanism already exists within the BNSS at the stage of discharge. The right of an accused to argue for discharge after cognizance but before trial is a well-established and powerful safeguard. This is explicitly provided for in Section 250, Section 262, and Section 268 of the BNSS for warrant cases based on a private complaint. Section 250 BNSS outlines the grounds for discharging an accused in a sessions case after the initial stages of the trial. The court will frame charges only if it finds the accused is not entitled to discharge under this section. Section 262 BNSS deals with the discharge of an accused in a warrant case that has been filed by the police. An accused can file an application for discharge under this section within sixty days of receiving copies of the documents from the police report. Section 268 BNSS addresses the discharge of an accused in a warrant case that was initiated by a private complaint to a Magistrate. Like Section 262, it provides a mechanism for the accused to seek discharge before charges are formally framed against them. 

Instead of creating a separate pre-cognizance hearing, the legislature could have simply strengthened these existing provisions. For instance, it could have mandated a time-bound hearing at the discharge stage. This would also have also achieved the same goal of preventing frivolous cases without changing the fundamental principle that cognizance is of the offence and not of the offender.

Conclusion

The introduction of a pre-cognizance hearing under Section 223 of the BNSS is a significant, if controversial, step towards a more fairness oriented justice system. The intent behind this addition is to avoid malicious and frivolous litigation that harasses the accused and also burdens our courts. However, a noble intent does not necessarily give a workable law. This provision has a lot of practical and procedural difficulties and without clear guidelines or rules by the Government clarifying the scope of this proviso, this “trial before the trial” is on track to become the very problem it seeks to solve. It will become a new avenue to cause delay and will obstruct genuine access to justice. The success of this reform will ultimately depend not on the letter of the law, but on the wisdom of the courts in giving it a practical and constitutionally sound meaning.