The Allahabad High Court has held that when a police report (or charge-sheet) relates to a non-cognizable offence under BNSS, it must be treated by the Magistrate as a “complaint,” not as a police-case or state-case, requiring different procedural safeguards before taking cognizance. In particular, the Court emphasised that summons to the accused cannot be issued without previously giving the accused an opportunity to be heard, as mandated by the first proviso to Section 223(1) BNSS.
A Division Bench of the Court — led by Praveen Kumar Giri — arrived at these conclusions while setting aside a cognizance-cum-summoning order passed by a Judicial Magistrate in Shahjahanpur. In that case, the Magistrate had acted on a police-report alleging non-cognizable offences (voluntarily causing hurt and insulting with intent to provoke breach of peace) arising out of a dispute between neighbours over drainage of domestic waste. The Magistrate had taken cognizance under Section 210(1)(b) of BNSS (cognizance on police report) and summoned the accused — without treating the report as complaint or giving the accused any hearing at the pre-cognizance stage. The High Court found this to be a violation of the procedural mandate under Section 223 of BNSS.
Section 223 BNSS governs “Examination of complainant.” It requires that when an offence is taken cognizable on complaint, the Magistrate must examine the complainant (and any witnesses present) on oath, reduce the substance of the examination to writing, and sign it. Crucially, the first proviso mandates that no cognizance may be taken without giving the accused an opportunity of being heard before summons are issued. The law thereby departs from the older regime under the Code of Criminal Procedure where the accused’s hearing was not mandatory at the cognizance stage. Under BNSS, this safeguard must be strictly respected.
In the case before the Court, the Magistrate failed on multiple counts: he neither converted the police report into a complaint nor treated the case under Section 210(1)(a) BNSS (cognizance on complaint), and did not record any sworn statement of the complainant or witnesses. Instead, he issued summons on the basis of the police report. The Court observed that such a procedure effectively deprived the accused of his statutory right to be heard before cognizance — a serious breach of the principles of natural justice and a violation of Article 21 (right to life and personal liberty) of the Constitution.
Recognising the significance of this error, the High Court quashed the summoning order. It remanded the matter back to the Magistrate with clear directions: the police report (to the extent it alleges non-cognizable offences) must be treated as a complaint, and cognizance may only be taken after first recording the sworn statement of the complainant (and any witnesses), then issuing notice to the accused, and giving him a fair hearing before any order of summons or trial is issued. The Magistrate was also warned to exercise greater care in future, and the Court stressed that taking judicial notice via summoning must not be conflated with any finding of guilt.
The Court further directed strict compliance with procedural requirements — including that every order must clearly state the name, designation, and identification number of the presiding officer below the signature. The Court noted that in the impugned order, these details were missing, underlining the need for transparency and accountability in judicial orders.
The judgment serves as a significant clarification of the procedural regime under BNSS. By treating police-reports for non-cognizable offences as complaints and mandating pre-cognizance hearing rights for the accused, the Court has reinforced safeguards to prevent arbitrary summons or prosecution. It underscores that BNSS’s reforms in criminal procedure — particularly Section 223 — must be strictly honoured, and that magistrates must ensure fair hearing before issuing process.
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