Tripura High Court Sets Aside Cognizance Order for Non-Compliance with Section 223 BNSS, Says Accused Must Be Heard First

Summary of the Judgment:

The High Court of Tripura has held that, under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a Magistrate dealing with a complaint must give the accused an opportunity of being heard before taking cognizance.

The Court held that this requirement is a significant procedural change introduced by the BNSS, which came into force on July 1, 2024. Where a complaint is filed after the commencement of the BNSS, directly taking cognizance without giving the accused the required opportunity of hearing would be bad in law, an abuse of the process of the Court and without jurisdiction.

The ruling was delivered by Justice Biswajit Palit on September 7, 2026, in Crl.P. No. 33 of 2026, Sri Dipankar Majumder & Anr. v. The State of Tripura & Anr. The Court set aside the order passed by the Chief Judicial Magistrate, West Tripura, Agartala, and remanded the matter for fresh consideration in accordance with Section 223 BNSS.

Facts of the Case:

The proceedings arose out of a complaint filed by Kotak Mahindra Bank Ltd. before the Court of the Chief Judicial Magistrate, West Tripura, Agartala, on July 12, 2024.

The complaint was filed against the present petitioners and others alleging offences under Sections 61(2), 314, 316, 318, 320, 321, 323 and 324 of the Bharatiya Nyaya Sanhita, 2023 (BNS).

The significance of the date of filing was central to the dispute. The BNSS had come into force on July 1, 2024, replacing the Code of Criminal Procedure, 1973. Thus, the complaint before the CJM was filed after the BNSS had already come into operation.

According to the petitioners, the CJM, on the very same day, took cognizance of the alleged offences without giving the accused an opportunity of being heard. The case was thereafter transferred by the CJM to the Court of the Judicial Magistrate First Class, Court No. 3, Agartala. Aggrieved by the cognizance order dated July 12, 2024, the petitioners approached the High Court under Section 528 BNSS, principally alleging non-compliance with Section 223 BNSS.

Petitioners’ Arguments:

Appearing for the petitioners, counsel argued that the CJM had committed a serious procedural illegality by taking cognizance without first providing an opportunity of hearing to the accused. The petitioners relied upon Section 223 BNSS, particularly the first proviso to Section 223(1), which states that cognizance cannot be taken by the Magistrate without giving the accused an opportunity of being heard.

It was argued that since the complaint itself had been filed on July 12, 2024, after the BNSS came into force, the procedure prescribed by Section 223 BNSS was applicable. The petitioners also relied upon the Supreme Court’s judgment in Kushal Kumar Agarwal v. Directorate of Enforcement, decided on May 9, 2025, contending that the Supreme Court had already recognised the effect of the newly inserted proviso to Section 223(1).

State’s Arguments:

The learned Additional Public Prosecutor appearing for the State opposed the petition.

It was argued that there was no illegality in the CJM’s order because the CJM had not recorded the statement of the complainant or the witnesses and had instead transferred the case to another Court for disposal. On that basis, the State contended that there was no reason for the High Court to interfere with the order at that stage.

The State relied upon two earlier Supreme Court decisions:

• Raghubans Dubey v. State of Bihar, 1967 SCC OnLine SC 3; and
• State of West Bengal v. Manmal Bhutoria & Ors., (1977) 3 SCC 440.

The State sought dismissal of the petition on the strength of those authorities.

Held:

The High Court first examined the difference between the former Section 200 CrPC and the newly enacted Section 223 BNSS.

The Court noted that Section 200 CrPC required a Magistrate taking cognizance of an offence on complaint to examine the complainant and witnesses present, subject to specified exceptions. However, there was no provision in Section 200 CrPC requiring the accused to be heard before cognizance was taken. Section 223 BNSS has introduced an additional safeguard.The first proviso to Section 223(1) expressly provides that:

“no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard”

The High Court treated this addition as significant and held that it imposes a mandatory obligation upon the Magistrate.

The Court held that under the new statutory scheme, the Magistrate must first afford the accused an opportunity of being heard and only thereafter proceed to take cognizance, followed by the examination of the complainant and witnesses wherever required.

The Court stated that the requirement was newly introduced by the BNSS and became applicable from July 1, 2024.

The High Court therefore rejected the proposition that the accused could simply be heard at a later stage after cognizance had already been taken. The High Court placed particular reliance on the Supreme Court’s decision in Kushal Kumar Agarwal v. Directorate of Enforcement. The Supreme Court had recognised that although Section 223 BNSS corresponds to Section 200 CrPC, the proviso requiring an opportunity of hearing to the accused was not present in Section 200 CrPC. The Supreme Court further held that the proviso to Section 223(1) places an embargo on the Court’s power to take cognizance without first giving the accused an opportunity of being heard.

The Tripura High Court found this principle directly applicable to the case before it. The High Court considered the authorities relied upon by the State but found that they did not address the legal issue arising under the new statutory framework of Section 223 BNSS. The Court noted that the BNSS had come into force on July 1, 2024, whereas the complaint in the present matter was filed on July 12, 2024. The Court therefore held that the Magistrate was required to follow the procedure mandated by Section 223 BNSS.

Court’s Key Finding:

The most significant portion of the judgment is the High Court’s finding that, after the commencement of the BNSS, a Magistrate dealing with a complaint must follow the statutory procedure before taking cognizance. The Court held that where a complaint is filed after July 1, 2024, directly taking cognizance without hearing the accused would be:

1. bad in law;
2. an abuse of the process of the Court; and
3. without jurisdiction.

This forms the central legal takeaway from the judgment.

Final Order of the High Court:

The High Court consequently allowed the criminal petition. The order dated July 12, 2024, passed by the CJM, West Tripura, Agartala, was set aside. The matter was remanded to the CJM with a direction to:

1. rehear the matter afresh;
2. proceed in accordance with Section 223 BNSS; and
3. reconsider the complaint filed by Kotak Mahindra Bank Ltd. in accordance with law.

The parties were directed to appear before the CJM on September 22, 2026. Significantly, the High Court also directed that a copy of the judgment be circulated to all Criminal Courts across the State of Tripura.