Raj HC clarifies scope of pre-cognizance hearing under BNSS, protects accused from coercive action

Jaipur/Jodhpur: The Rajasthan High Court has held that Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 marks a legislative departure from Section 200 of the Code of Criminal Procedure, 1973 by introducing a limited pre-cognizance hearing to the proposed accused in specified complaint cases. The Court held that the expression “while taking cognizance” in Section 223 of the BNSS signifies a distinct procedural stage prior to crystallization of cognizance, enabling the Magistrate to afford a limited opportunity of hearing before deciding whether cognizance ought to be taken.

Justice Farjand Ali recorded that under Section 200 CrPC, the stage preceding cognizance was largely unilateral in character, confined to examination of the complainant and witnesses, with the proposed accused having no locus or right of appearance prior to issuance of process. In contrast, Section 223 of the BNSS contemplates that no cognizance of an offence shall be taken without giving the accused an opportunity of being heard in specified complaint cases involving offences punishable with three years or more.

These observations were made while deciding S.B. Criminal Writ Petition No. 587/2026 filed by Arvind Nath and Smt. Kanta Pandiya, who challenged issuance of summons in Criminal Complaint No. 03/2025 pending before the learned Judge, POCSO Court No.1, Chittorgarh.

The factual trajectory recorded by the Court noted that FIR No. 21/2025 had been registered at Police Station Gangrar against the petitioners under Section 296(a) of the BNS, and investigation in that case was underway. Thereafter, the petitioners lodged FIR No. 175/2025 against Kalu Ram Suthar and others, and investigation in that case was also pending. Subsequently, Kalu Ram Suthar filed a criminal complaint against the petitioners containing allegations similar to those in FIR No. 175/2025. The learned trial court issued summons to the petitioners seeking their appearance on 11.02.2026.

Before proceeding further, the High Court reproduced Section 200 CrPC and Section 223 BNSS and analysed the doctrinal shift. The Court recorded that under the earlier regime, cognizance was understood to be taken upon initial judicial application of mind to the complaint, after which the statutory course moved toward issuance of process. Section 223 BNSS, however, uses the expression “while taking cognizance,” indicating that taking cognizance is no longer an instantaneous act but a procedural stage during which statutory requirements may intervene.

The Court held that the pre-cognizance hearing contemplated under Section 223 BNSS does not permit adjudication on merits or detailed examination of evidence. Its scope remains confined to assisting the Court in forming a more informed judicial opinion at the threshold, serving as a protective sieve against frivolous or manifestly abusive prosecutions while balancing the complainant’s right to set criminal law in motion and the proposed accused’s right to protection from unwarranted criminal process.

In the present case, the Court recorded that the learned Judge, POCSO Court, had proceeded in consonance with the procedure under the BNSS by issuing summons for the limited purpose of affording the petitioners an opportunity of being heard prior to proceeding further. The order-sheets revealed that statements of the complainant and witnesses had already been recorded.

After hearing counsel and examining the material annexed with the writ petition, the High Court observed that the criminal complaint instituted against the petitioners should come to an end logically and in accordance with law. At the same time, being the sentinel of the Constitution and in view of the peculiar facts and circumstances of the case, the Court held that the right to life and liberty of the petitioners required protection at this stage.

Accordingly, the writ petition was disposed of with directions that the petitioners shall appear before the learned Judge, POCSO Court No.1, Chittorgarh on 11.02.2026; no coercive measures shall be taken against them; the learned trial court shall afford them a hearing and thereafter pass an appropriate order on the question of taking cognizance strictly in accordance with law; and any oral or documentary material placed by the petitioners shall be duly considered before passing a final order.

Case Title
Arvind Nath & Anr. vs State of Rajasthan & Anr.

Case Number
S.B. Criminal Writ Petition No. 587/2026

Court
High Court of Judicature for Rajasthan at Jodhpur

Bench
Justice Farjand Ali

Date of Order
09.02.2026

Advocates
For the petitioners: Ms. Komal R. Verma
For the respondents: Mr. N.S. Chandawat, DyGA