Introduction
The introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), marks a significant transformation in India’s criminal justice framework. It replaces the Code of Criminal Procedure, 1973 (CrPC), and seeks to modernize the criminal process by introducing transparency, efficiency, and citizen-centric safeguards. One of the most discussed and reformative provisions of this new legislation is the concept of pre-cognizance hearing in complaint cases. This new mechanism changes the procedural landscape by granting the accused an opportunity to be heard even before the magistrate formally takes cognizance of an offence. It represents a major step toward protecting individual liberty while ensuring fairness and preventing misuse of criminal law.
Background and Rationale for the Reform
Under the previous CrPC regime, once a complaint was filed before a magistrate, the accused had no right to participate or be heard until the court took cognizance and issued summons under Section 204. This unilateral procedure often led to situations where individuals were summoned without sufficient legal basis, causing unnecessary harassment, reputational harm, and financial loss. The accused would then have to approach higher courts to seek quashing of the proceedings, further burdening the judiciary.
The BNSS 2023 aims to correct this procedural imbalance. It introduces a pre-cognizance hearing mechanism that allows the accused to raise certain preliminary objections before the court proceeds to take cognizance. The objective is not to convert the process into a trial but to ensure that only those complaints that disclose a prima facie case and fall within the jurisdiction of the magistrate move forward. This reform reflects a conscious effort by lawmakers to strengthen the principles of natural justice and to protect citizens from unwarranted criminal prosecution.
Meaning and Nature of Pre-Cognizance Hearing
Cognizance is a judicial act whereby a magistrate applies his mind to the facts presented in a complaint or police report to decide whether an offence appears to have been committed. In simple terms, it marks the beginning of the judicial process in a criminal case. The term “pre-cognizance hearing” therefore refers to the procedural stage before the magistrate takes such cognizance.
Under the BNSS, the magistrate is now required to afford an opportunity to the accused to make a limited representation before cognizance is taken. This opportunity is confined to specific grounds such as jurisdictional defects, limitations, maintainability, or the absence of ingredients necessary to constitute an offence. It is not meant to evaluate evidence or conduct a detailed inquiry into the merits of the complaint. Thus, it serves as a preliminary judicial filter designed to weed out complaints that are legally defective or clearly frivolous.
Statutory Basis and Key Features
Section 223 of the BNSS, 2023 (which corresponds broadly to Sections 200–204 of the old CrPC) provides the legal basis for pre-cognizance hearing. It states that before taking cognizance of a complaint, the magistrate shall offer the accused an opportunity to be heard on limited issues, particularly relating to jurisdiction, limitation, or maintainability. After hearing the accused, the magistrate may either dismiss the complaint if it lacks merit or proceed to take cognizance and issue process if a prima facie case is made out.
The reform does not dilute the magistrate’s discretion; rather, it supplements it with an additional procedural safeguard. The magistrate continues to act independently but now with the advantage of considering both sides of the preliminary legal issues before taking judicial notice of the offence.
Objectives and Significance
The primary objective of introducing a pre-cognizance hearing is to strengthen procedural fairness and reduce misuse of the criminal process. In India, criminal law has often been used as a tool of personal vendetta or business rivalry, with false or exaggerated complaints being filed to coerce settlements or harass opponents. Once the court takes cognizance and issues summons, the accused is dragged into a lengthy process involving appearance, bail, and trial. Even if eventually acquitted, the process itself becomes a punishment. The pre-cognizance hearing attempts to minimize this misuse by enabling early judicial scrutiny of complaints.
Moreover, this reform is in line with the constitutional guarantee of Article 21, which ensures the right to life and personal liberty. The Supreme Court in several judgments, including Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) and Sunil Bharti Mittal v. CBI (2015), has emphasized that summoning an accused in a criminal case is a serious matter requiring careful judicial application of mind. By codifying this principle into statute, the BNSS aligns procedural law with the spirit of these judicial pronouncements.
Judicial and Practical Implications
The introduction of pre-cognizance hearing will have wide-ranging implications for both the judiciary and litigants. On the positive side, it is expected to filter out weak or frivolous cases at the earliest stage, saving judicial time and resources. It will also protect innocent citizens from unnecessary humiliation and litigation.
However, the provision is not without challenges. Critics argue that it may slow down the process of justice, as every complaint would now require an additional stage of hearing before cognizance is taken. This could particularly burden magistrate courts already struggling with large case backlogs. There is also apprehension that influential accused persons may exploit this right to delay proceedings through repeated objections or non-appearance.
Judicial officers will therefore have to apply this provision with caution. The hearing should remain limited in scope and purpose; it must not become a platform for the accused to contest the merits of the case or to intimidate the complainant. The magistrate’s role will be to ensure that the process is fair, expeditious, and consistent with legislative intent.
Balancing Rights and Ensuring Fairness
At its core, the pre-cognizance hearing seeks to balance two equally important value the complainant’s right to seek justice and the accused’s right to liberty and dignity. Criminal law is meant to protect society and punish wrongdoing, but it must not become a means of harassment. The BNSS provision ensures that both parties are treated fairly and that the judicial process begins only after minimal scrutiny of legal validity.
The concept also harmonizes with India’s move toward a more rights-based justice system. It emphasizes that procedural fairness is as important as substantive justice. While the earlier CrPC framework focused primarily on efficient prosecution, the BNSS seeks to infuse the process with greater accountability and respect for individual rights.
Implementation Challenges
The success of this reform will depend on how effectively it is implemented. Judicial training will play a crucial role in ensuring that magistrates understand the precise scope and purpose of pre-cognizance hearings. There must also be clear guidelines to prevent misuse or unnecessary delay. States will need to update procedural rules and digital systems to integrate this new stage smoothly within existing workflows.
Additionally, adequate infrastructure and staffing will be essential. If magistrate courts are overburdened or lack proper digital facilities for scheduling and case management, the new provision could end up increasing pendency rather than reducing it. Hence, administrative reforms must accompany procedural innovations to realize the intended benefits.
Conclusion
The introduction of the pre-cognizance hearing under the Bharatiya Nagarik Suraksha Sanhita, 2023, represents a bold and progressive step in criminal procedural law. It signifies a shift from a purely accusatorial system to a more balanced, rights-oriented approach that values fairness as much as efficiency. By giving the accused a limited opportunity to be heard before cognizance, the law enhances transparency, prevents misuse, and reinforces the rule of natural justice.
However, the effectiveness of this provision will depend on its practical application. Courts must ensure that the process remains summary and focused, avoiding unnecessary delays or complexity. With careful implementation, the pre-cognizance hearing can become a model reform that strengthens public faith in the justice system and furthers the constitutional vision of due process and fairness in criminal administration.
CONTRIBUTED BY : LAKSHAY NANDWANI