Introduction
The Indian criminal justice system saw a significant overhaul with the introduction of three new statutes that have come into effect from 1 July 2024. The Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) is the new criminal procedural law which has replaced the erstwhile Code of Criminal Procedure, 1973 (“CrPC”). One of the key changes brought in the BNSS is the introduction of a right to a pre-cognizance hearing granted to persons accused in cases instituted upon complaints.
Legal Framework
Under Indian law, the first step in a criminal case is a court taking cognizance of an offence. A court takes cognizance, when on an initial examination of the facts, it determines that further action is required, and the validity of the allegations needs to be examined.1
The BNSS, akin to the CrPC, sets out the following three mechanisms through which courts of Magistrates2 can take cognizance:3
- cognizance upon a complaint (hereinafter “complaint case(s)”),
- cognizance upon a police report, and
- cognizance upon the Magistrate’s own knowledge, or upon information received from a person other than a police officer, about the commission of an offence.
Since the stage of cognizance is an initial step taken by a court, it does not involve a substantive determination of the guilt or innocence of an accused person. The court merely applies its mind to the facts to determine whether there is sufficient material to proceed with the case.
Section 223 of the BNSS sets out the procedure for taking cognizance in the first category of cases, i.e., complaint cases. The provision largely replicates Section 200 of the CrPC, which it has replaced. The key difference is the inclusion of a mandatory pre-cognizance hearing where the accused is given an opportunity to be heard. After the introduction of the BNSS, various High Courts in India have taken a consistent view that, in complaint cases, courts must mandatorily grant accused persons an opportunity of hearing before taking cognizance.
This provision directly impacts criminal prosecutions conducted by specialized law enforcement agencies such as the Directorate of Enforcement in money-laundering cases, and the Serious Fraud Investigation Office in cases of corporate fraud. These specialized agencies deviate from the procedure followed by the regular police and file complaints instead of police reports.4 Consequently, the newly introduced pre-cognizance hearing framework in complaint cases would also apply to cases prosecuted by these agencies. On 9 May 2025, the Supreme Court of India took the same approach and held that in cases where the Directorate of Enforcement files complaints under the Prevention of Money Laundering Act, 2002, accused persons must be given an opportunity of pre-cognizance hearing.5
The Right of Pre-Cognizance Hearing in Practice
Prior to the introduction of the BNSS, an accused person had no right of audience before a criminal court until the court took cognizance of the offence and issued summons to them. The legislative intention to grant accused persons an opportunity of hearing at this initial stage in complaint cases is laudable. However, the introduction of the pre-cognizance hearing framework raises significant questions regarding the scope of such hearing, and the nature of objections which courts would consider at the pre-cognizance stage.
The Calcutta High Court has recently discussed the scope of a court’s inquiry at the pre-cognizance stage in Kaberi Dey v. Sourav Bhattacharjee.6 The court referred to the oft-quoted principle in Indian law that a court takes cognizance of an offence, and not of the offender. Relying on this principle, the Calcutta High Court made the following observations:
- At the time of taking cognizance, the criminal court must only examine whether prima facie an offence has taken place.
- In the pre-cognizance hearing, the accused can either raise technical issues (such as jurisdictional error, issues of limitation, etc.) or argue that the allegations contained in the complaint are preposterous and no offence is made out for taking cognizance.
- An offender’s individual role would not be considered at the pre-cognizance stage.
The Calcutta High Court’s reasoning builds upon the limited nature of inquiry that a court undertakes at the stage of cognizance. At this stage, a court is not required to examine the truthfulness of allegations made in a complaint or the role of each accused person. The court only needs to be broadly satisfied that the complaint requires further action. The stage of cognizance is followed by the stage of issuance of process to accused persons. It is at this latter stage that the court identifies the persons against whom a prima facie case is made out and summons them to face proceedings.7 The Calcutta High Court has re-affirmed the distinction between the stage of cognizance and the stage of issuance of process in Kaberi Dey’s case.
However, with the introduction of the BNSS, the conceptual understanding that the stage of cognizance is different from the stage of issuance of process may require re-examination. The right to a pre-cognizance hearing may remain superfluous if accused persons are not permitted to advert to the specific allegations made against them in order to defend themselves. In fact, even prior to the introduction of the BNSS, there has been judicial recognition of the fact that the two stages are closely intertwined. The Supreme Court of India has referred to issuance of process to an accused person as the visible manifestation of taking cognizance.8
Cases frequently arise where complaints are filed which name multiple accused persons but do not set out clear allegations against each of them. In such cases, an accused person may participate in a pre-cognizance hearing and point out to the court that there is no incriminating material against them. The stage of cognizance is immediately followed by issuance of process. It may be impractical to expect the court to ignore submissions about the individual role of an accused while ascertaining who is to be summoned for further proceedings.
The Calcutta High Court’s decision in Kaberi Dey is the first judicial pronouncement of note on the scope of inquiry in a pre-cognizance hearing. The Supreme Court and other High Courts are yet to weigh in on this issue. It is expected that a pre-cognizance hearing will continue to be seen as a limited inquiry. However, it is hoped that courts will read into the provision a right for accused persons to defend themselves by adverting to the specific allegations made against them by the prosecution.
Footnote(s):
1 Tula Ram v. Kishore Singh, (1977) 4 SCC 459
2 In India, criminal offences are placed in two categories – offences triable by Magistrates, and offences triable by Sessions Courts. Magistrate courts are the junior-most courts in the criminal system. Criminal cases are typically instituted in the courts of Magistrates who are empowered to take cognizance. If the Magistrate finds that a case involves offences triable by Sessions Courts, the case is committed to such court for further proceedings. Special statutes such as the Prevention of Money Laundering Act, 2002, the Prevention of Corruption Act, 1988, the Narcotics Drugs and Psychotropic Substances Act, 1985 create Special Courts which are manned by senior judges. In case of offences under these statutes, the proceedings are directly instituted in the Special Courts which are empowered to take cognizance.
3 Section 210, BNSS.
4 See Section 44(1)(b), Prevention of Money Laundering Act, 2002, and Section 212(6), Companies Act, 2013.
5 Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC Online SC 1221
6 2025 SCC Online Cal 5928
7 State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728
8 A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500