Section 200 of the Code of Criminal Procedure, 1973 (CrPC), which governed the examination of complainants in private complaint cases, has been replaced by Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The most significant change is the introduction of a mandatory pre-cognizance hearing for the accused — a fundamental procedural right that did not exist under the old law. Additionally, Section 223 introduces special safeguards when complaints are filed against public servants, requiring a report from the accused's superior officer before the Magistrate proceeds.
What changed
| Feature | Section 200 CrPC (Old) | Section 223 BNSS (New) |
|---|---|---|
| Examination of complainant | Magistrate shall examine complainant and witnesses upon oath | Same — retained |
| Accused's right to be heard | No provision — accused had no role before cognizance | Mandatory pre-cognizance notice and opportunity of hearing for accused |
| Jurisdiction requirement | Implicit — jurisdiction inherently required | Explicit — "Magistrate having jurisdiction" specified in text |
| Public servant complaints | No special procedure | New sub-section requiring report from superior officer and opportunity for accused to present assertions |
| Stage of accused's entry | Accused entered proceedings only after process issued under Section 204 | Accused enters at pre-cognizance stage through notice |
| Scope of Magistrate's inquiry | Examination of complainant and witnesses only | Expanded to include hearing the accused before deciding on cognizance |
Full statutory text
Section 200 CrPC (Old Law) — Relevant Extract:
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses — (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192.
Section 223 BNSS (New Law) — Key Provisions:
(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses — (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless — (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.
Key differences
Pre-cognizance hearing — a paradigm shift: The first proviso to Section 223(1) mandates that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." This is the most consequential change in private complaint jurisprudence in decades. Under CrPC, the accused had no locus standi until process was issued under Section 204. Now, the accused must receive notice and can present their version before the Magistrate decides whether to take cognizance at all.
Public servant protection at pre-cognizance stage: Section 223(2) introduces an entirely new sub-section requiring the Magistrate to obtain a report from the accused public servant's superior officer before taking cognizance. This creates a filtering mechanism for complaints against public servants, allowing the superior officer's perspective to inform the Magistrate's decision.
Explicit jurisdictional reference: Section 223(1) specifies "a Magistrate having jurisdiction," making the jurisdictional requirement textually explicit. While jurisdiction was always required under CrPC, the express mention eliminates any ambiguity.
Procedural sequence alteration: Under CrPC Section 200, the sequence was: examination of complainant, then cognizance, then process. Under BNSS Section 223, the sequence becomes: examination of complainant, notice to accused, hearing the accused, then cognizance. This inserts an adversarial element at the earliest stage.
Impact on cognizance jurisprudence: The term "taking cognizance" remains undefined in BNSS, as it was in CrPC. However, the pre-cognizance hearing requirement means the Magistrate now has the accused's version before applying judicial mind — fundamentally changing the informational basis on which cognizance decisions are made.
What this means for practitioners
For the accused: This is a significant gain. For the first time, accused persons in private complaint cases can present their defence before the Magistrate takes cognizance. This allows early intervention — potentially preventing wrongful prosecution before it begins. Accused persons should treat the pre-cognizance notice seriously and file a detailed response explaining their version of events.
For complainants: Private complaints will now take longer to result in cognizance, as the Magistrate must issue notice to the accused and conduct a hearing. Complainants should be prepared for a contested pre-cognizance proceeding and ensure their complaint is well-supported from the outset.
For Magistrates: The procedural burden increases substantially. Magistrates must now issue notice to the accused after examining the complainant but before taking cognizance. The mode, timeline, and form of this notice may require clarification through High Court practice directions.
For public servant complaints: The additional requirement of obtaining a superior officer's report creates a dual filter — the Magistrate receives both the complainant's case and the institutional perspective before deciding. Defence counsel for public servants should ensure the superior officer's report is comprehensive and timely.
For pending cases: Complaints pending under CrPC Section 200 as of 1 July 2024 where cognizance had not yet been taken may need to comply with the new pre-cognizance hearing requirement under Section 223 BNSS, depending on the transitional provision applied.
Does old case law still apply?
Suresh Chand Jain v. State of Madhya Pradesh (2001) 2 SCC 628: The principles regarding the Magistrate's duty to examine the complainant and apply judicial mind remain applicable. However, the Magistrate must now also hear the accused before taking cognizance — expanding the scope of inquiry at the initial stage.
Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338: The Supreme Court's ruling that a Magistrate cannot recall an order of cognizance once passed continues to apply. The new pre-cognizance hearing mechanism may reduce the need for such recall by ensuring better-informed cognizance decisions.
Basanagouda R. Patil v. Shivananda S. Patil, Criminal Petition No. 7526 of 2024 (Karnataka HC, 27 September 2024): One of the first judicial interpretations of Section 223 BNSS, this Karnataka High Court decision addressed the procedural requirements of the pre-cognizance hearing, providing early guidance on how the new provision should be implemented.
The core principles governing examination of complainants, the scope of inquiry at the pre-cognizance stage, and the Magistrate's power to dismiss complaints under Section 203 CrPC (now Section 226 BNSS) continue to apply. The new pre-cognizance hearing requirement supplements rather than replaces the existing framework.
Judicial interpretation under BNSS Section 223 (post-July 2024)
The following case from the Veritect Legal Intelligence database shows how the Supreme Court is interpreting Section 223 BNSS in practice:
Kushal Kumar Agarwal v. Directorate of Enforcement (9 May 2025)
Court: Supreme Court of India | Result: Appeal partly allowed, cognizance order set aside
A complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 was filed on 2 August 2024 against the appellant. The BNSS, which came into force on 1 July 2024, added the proviso to Section 223 requiring an opportunity of hearing to the accused before cognizance. The Special Judge took cognizance without providing this hearing.
The Supreme Court set aside the cognizance order on the ground of non-compliance with the proviso to Section 223 BNSS. The Court held that the proviso imposes a non-negotiable embargo on the Magistrate's power to take cognizance without first hearing the accused. The decision underscores that the BNSS's procedural safeguards are mandatory and cannot be bypassed even in money-laundering cases. Future courts must ensure strict adherence to Section 223 BNSS when dealing with complaints under PMLA or similar special statutes.
Veritect reference: Diary_4952-2025_Judgment
Emerging patterns
- Pre-cognizance hearing is mandatory, not directory: The SC has treated the proviso to Section 223 as a non-negotiable embargo — cognizance taken without hearing the accused is void.
- Applies to special statutes: The pre-cognizance hearing requirement extends to complaints under PMLA and other special statutes that are governed by CrPC/BNSS complaint procedure.
- Public servant dual protection: Sub-section (2) creates a separate and additional filter for complaints against public servants — both the opportunity for assertions and the superior officer's report are required before cognizance.
Frequently asked questions
Does the accused have to appear in person for the pre-cognizance hearing? Section 223 BNSS requires "an opportunity of being heard" but does not mandate personal appearance. The accused may respond through counsel or in writing. The precise procedural requirements may be clarified by High Court practice directions.
Can the Magistrate dismiss the complaint after hearing the accused? Yes. The pre-cognizance hearing allows the Magistrate to consider the accused's version before deciding whether to take cognizance. If the Magistrate finds the complaint lacks merit after hearing both sides, the complaint can be dismissed without taking cognizance.
Does the pre-cognizance hearing apply to police report cases (chargesheets)? No. Section 223 applies specifically to cases where the Magistrate takes cognizance "on complaint." Cognizance taken on police reports (chargesheets) under Section 193 BNSS follows a different procedure and does not require a pre-cognizance hearing for the accused.
What is the new procedure for complaints against public servants? Under Section 223(2), the Magistrate must first obtain a report from the superior officer of the accused public servant. After considering this report, the Magistrate may either dismiss the complaint or proceed with examination. This is an additional pre-cognizance filter specific to public servant cases.