Pre-Summoning Evidence Before Notice: Delhi High Court Defines the New Section 223 BNSS Protocol

1. Introduction

Brand Protectors India Pvt. Ltd. (petitioner / accused) invoked the Delhi High Court’s supervisory jurisdiction under Article 227 of the Constitution and Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), to challenge part of an order passed by the Additional Sessions Judge (ASJ). The respondent, Mr. Anil Kumar (complainant), had filed a defamation complaint (Section 222 BNSS) against the petitioner. The Magistrate had, on 19 July 2024:

• taken cognizance of the offence, and
• fixed the matter for “pre-summoning evidence”.

On revision, the ASJ set aside the taking of cognizance because the Magistrate had done so without giving the accused an opportunity to be heard, as now mandated by the first proviso to Section 223(1) BNSS. However, the ASJ upheld the direction to record pre-summoning evidence even without notice to the accused.

The core issue before the High Court, therefore, was whether pre-summoning evidence can validly be recorded before the accused is given notice and heard under the new Code.

2. Summary of the Judgment

Justice Neena Bansal Krishna dismissed the petition, holding that:

1. The ASJ rightly struck down the Magistrate’s cognizance for failure to first hear the accused under Section 223(1) BNSS.
2. The ASJ also rightly sustained the Magistrate’s decision to record pre-summoning evidence without notice, because Section 223 expressly requires the examination of the complainant/witnesses “while taking cognizance”, i.e., before the mind of the Magistrate is applied to decide cognizance. Hence, recording such evidence precedes the stage at which the accused is entitled to be heard.
3. Section 225 BNSS (postponement of process) reinforces that enquiry and evidence collection may occur before cognizance and without the accused’s participation; the proviso to Section 223 only inserts the hearing right immediately before cognizance is actually taken.

Consequently, the petition failed and the order directing pre-summoning evidence stood affirmed.

3. Analysis

3.1 Precedents Cited and Their Influence

• Raj Kumar v. State (2013 SCC OnLine Del 774); C. Ilavarasu v. State (2019 SCC OnLine Mad 1119); Kishori Mohan Guchhait v. Apurba Baran (1979 Cal HC) – invoked by the petitioner to argue that no pre-summoning evidence should occur before cognizance. The High Court distinguished these cases because they interpreted the old CrPC (Sections 200/202) that did not impose a mandatory pre-cognizance hearing for the accused.
• Narayan Das Bhagwandas v. State of WB (1959 SC) & R.R. Chari v. State of U.P. (1951 SC) – defined “cognizance” as the point when the Magistrate applies judicial mind; relied upon to show that the stage of cognizance is separate from the preliminary verification stage.
• Ram Das v. Shir Niwas (1984 SC); Vadilal Panchal v. Dattatraya (1960 SC); Adalat Prasad v. Roop Lal Jugal (2004 SC) – emphasised the twin purposes of Section 202 CrPC (now 225 BNSS): filtering frivolous complaints and protecting the accused from unnecessary trial. The High Court applied the same rationale to hold that preliminary evidence can legitimately occur without the accused.
• Manharibhai Kakadia v. Shaileshbhai Patel (2012 SC); Ghanshyam Shukla v. State of U.P. (2006 All HC) – clarified that the Magistrate’s satisfaction (based on prima-facie evidence) is necessary before process issues.
• Post-BNSS authorities: Tutu Ghosh v. ED (2025 Cal HC); Neeti Sharma v. Saranjit Singh (2025 Del HC); Suby Antony (2025 Ker HC); Sri Basanagouda R. Patil (2024 Kar HC) – all interpreted the new Section 223(1) and uniformly held that the accused gains a right to be heard before cognizance, but not necessarily during earlier verification steps.

3.2 Court’s Legal Reasoning

1. Statutory Text: Section 223(1) BNSS directs the Magistrate to “examine upon oath the complainant and the witnesses” while taking cognizance.   → “While” = contemporaneous; thus, examination first, application of mind next.
2. First Proviso Innovation: The first proviso (not found in old Section 200 CrPC) says “no cognizance shall be taken … without giving the accused an opportunity of being heard.” The proviso does not say that the accused must be heard before the examination of the complainant/witnesses.
3. Harmony with Section 225: Section 225 expressly allows postponement of process and permits the Magistrate to hold an enquiry or order investigation before deciding whether sufficient grounds exist. This presupposes that such enquiry can take place without notice to the accused.
4. Purpose of Pre-Summoning Evidence: It is a filtering mechanism to protect accused persons from vexatious litigation and to assist the Magistrate. Including the accused at this stage would defeat the summary nature of the exercise and could compromise complainant safety or evidence integrity.
5. Sequence Clarified:
   1. File complaint.
   2. Magistrate examines complainant/witnesses on oath (Section 223).
   3. Accused is furnished with complaint + statements and is heard pre-cognizance (first proviso).
   4. Magistrate applies mind → decides cognizance;
   5. If cognizance taken, process issued (Section 227 BNSS, equivalent to Section 204 CrPC).

3.3 Impact on Future Litigation & Criminal Procedure

• Blueprint under BNSS: This is one of the first High Court rulings systematically mapping the procedural flow after the BNSS replaced the CrPC. Trial courts now have a clarified checklist:
• (i) record complainant evidence,
• (ii) supply material to and hear the accused,
• (iii) then decide cognizance.
• Accused’s New Right, Limited in Scope: The decision underlines that the right to be heard is meaningful but not absolute—it does not extend to cross-examination of complainant witnesses at the verification stage.
• Speed vs. Fairness Balance: The ruling maintains efficiency by keeping preliminary verification ex parte, while simultaneously embedding a fairness checkpoint immediately thereafter.
• Guidance for Drafting Complaints: Complainants’ counsel must come prepared with witnesses on the first date; otherwise the complaint may be dismissed even before the accused is heard.
• Likely National Persuasion: Given that the BNSS is centrally enacted and other High Courts are wrestling with identical language, this well-reasoned Delhi decision is poised to be cited country-wide until the Supreme Court provides an authoritative pronouncement.

4. Complex Concepts Simplified

• BNSS 2023: The Bharatiya Nagarik Suraksha Sanhita, 2023, is the proposed successor to the Criminal Procedure Code, 1973. It largely re-casts the CrPC but introduces some procedural changes—one being the hearing right in Section 223.
• Cognizance: A judicial “green light”. When a Magistrate takes cognizance, she formally agrees that an offence may have been committed and decides to move forward judicially. It is not the same as summoning the accused but is a prerequisite.
• Pre-Summoning Evidence / Verification: Brief, often one-day exercise where the complainant and any present witnesses narrate the offence on oath to help the Magistrate decide whether the complaint is frivolous.
• Process / Summons: The document calling the accused to court. Issued after cognizance (Section 227 BNSS, old Section 204 CrPC).
• Article 227: Constitutional provision granting High Courts supervisory power over lower courts to correct jurisdictional or procedural errors.
• Section 528 BNSS: Mirrors Section 482 CrPC—High Court’s inherent criminal jurisdiction to prevent abuse of process or secure justice.

5. Conclusion

Brand Protectors India Pvt. Ltd. v. Anil Kumar establishes the first clear roadmap for magistrates and litigants under Section 223 BNSS. The judgment confirms that:

1. The accused must be heard before the Magistrate finally decides to take cognizance;
2. Nonetheless, the Magistrate may—indeed must—first test the complaint by recording the complainant’s evidence on oath, without the accused’s participation;
3. This sequencing harmonises the complainant’s need for swift access to justice with the accused’s need to avoid precipitate prosecutions.

Practitioners should adjust their strategies accordingly: prepare robust preliminary evidence when filing private complaints, and, if representing an accused, be ready to make persuasive submissions at the newly created pre-cognizance hearing. The ruling will likely shape nationwide criminal practice under the BNSS until the Supreme Court or further legislative amendments offer additional guidance.