Trial courts can't issue notice to accused before stage of cognisance under BNSS: Kerala High Court

The Kerala High Court recently clarified a change brought about by the Bharatiya Nagarik Suraksha Sanita, 2023 (BNSS) when it comes to the manner in which criminal trial courts are to take cognisance (judicial notice) of a criminal complaint [Suby Antony v R1 (Deleted) & ors]..The BNSS replaced the earlier Code of Criminal Procedure, 1973 (CrPC) with effect from July last year. Justice VG Arun observed that Section 223(1) of the BNSS introduced a radical change when it comes to the procedure for taking cognisance of criminal cases, by making it mandatory for trial courts to give the prospective accused an opportunity of hearing before cognisance is taken. The Court, however, clarified that no notice is to be issued for this purpose to the accused before the stage of taking cognisance, which can only happen after the complainant and witnesses have been examined on oath. The Court proceeded to clarify the sequence of events under the new law as follows:"After the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused.".In this regard, the Court agreed with the view in Basanagouda R Patil v Shivananda S Patil, in which the Karnataka High Court too had indicated that notice to the accused need only be issued at the stage of taking cognisance, and not before. "I am also in complete agreement with the procedural drill delineated by the High Court of Karnataka," Justice Arun said. .The Court made this observation while setting aside a trial court's decision to issue notice to a prospective accused before the stage of cognisance, and even before the complainant and witnesses were examined on oath (a pre-requirement for taking cognisance). The petitioner before the High Court had filed a criminal complaint against the accused. When the complaint was presented before the trial court, The magistrate issued notice to the accused even before first examining the complainant (petitioner) and witnesses. The petitioner challenged this before the High Court, which agreed that the magistrate had made a mistake in issuing notice to the accused at a premature stage.No notice could not have been issued to the prospective accused before taking cognisance, the High Court held while quashing the trial court order issuing notice to such accused. "The court below is directed to examine the complainant and his witnesses, if any, upon oath. The accused, though issued with notice from the court below, shall be afforded opportunity of hearing if the Magistrate decides to take cognisance of the offences mentioned in the complaint after such examination," the Court added. .The petitioner was represented by advocate Shaju Francis, while Senior Public Prosecutor Pushpalatha MK appeared for the state..[Read Order]