The BNSS promised faster criminal justice, but its new rule for private complaints may do the opposite. Section 223 requires accused persons to be heard even before cognizance, creating a fresh adversarial stage. Early court rulings suggest this procedural change risks slowing down—not speeding up—criminal trials.
New Delhi (ABC Live): When the Bharatiya Nagarik Suraksha Sanhita (BNSS) replaced the 1973 Code of Criminal Procedure, the Government promised a faster justice system. Trials, it claimed, would no longer stretch for years. The earlier CrPC had allegedly permitted delay; the BNSS was meant to cure it.
However, one provision — Section 223, dealing with private complaints — has created a significant procedural shift. By making it mandatory to hear accused persons even before cognizance, it introduces an adversarial step at the very entry stage of a complaint. While the intention may be to screen frivolous cases early, the practical risk is that this new layer may slow down, not speed up, criminal trials.
BNSS has been in effect only since July 2024. Comprehensive data is still emerging, but early courtroom trends and case law show how this provision may have unintended consequences.
Section 223: A New Pre-Cognisance Hearing
A criminal complaint in court moves through four narrowing stages:
(1) Cognizance → (2) Summoning → (3) Charge → (4) Trial
Under the CrPC, the accused did not have a right to be heard before being summoned. The Supreme Court (2002) confirmed that the accused had no such audience at that stage. Cognizance was a judicial scrutiny of papers, not an oral hearing.
BNSS Section 223 changes that.
The proviso explicitly states:
“No cognizance shall be taken… without giving the accused an opportunity of being heard.”
Thus, for the first time, the accused must be heard before the court decides whether the complaint deserves to proceed.
No Parliamentary debate clarified the rationale. The most plausible inference is that Parliament wanted to weed out weak complaints early. But the cost is the possibility of additional hearings, time, and paperwork.
CrPC vs BNSS Comparison
| Feature | CrPC, 1973 | BNSS, 2023 | Observation |
|---|---|---|---|
| Provision | §200 | §223 | BNSS adds proviso |
| Has the accused been heard at cognizance? | ❌ No | ✔ Yes | New stage added |
| Nature of cognizance | Paper scrutiny | Hearing + evaluation | Risk of delay |
| Must documents be given? | ❌ Not required | ⚠ Likely yes (HC trends) | Still evolving |
| Accused before summoning? | ❌ No | ✔ Yes | Participation advanced |
| Order required? | Minimal | ⚠ Reasoned (HC trends) | Judicial burden may rise |
| Supplementary complaints | No separate hearing | ⚠ Likely separate (HC trends) | Unsettled |
| Agency complaints (ED, etc.) | Rarely opposed | ⚠ Trend towards inclusion | Impact on economic offences |
| Cheque bounce cases | Part of the regime | ❌ Exempted by SC | BNSS diluted here |
Trends are based on emerging judgments; not yet conclusively settled by the Supreme Court for all categories.
Why Section 223 May Defeat Its Own Purpose
What was a silent file-scrutiny under CrPC now risks turning into a mini-hearing requiring:
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sharing complaint materials,
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allowing objections from the accused,
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replies or counter-materials,
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and a reasoned order.
In practical terms, this may often require multiple dates, especially in overloaded Magistrate courts.
Supreme Court Signals Concern
The Supreme Court has excluded cheque dishonour cases (NI Act) from the Section 223 procedure, signalling concern about the delay applied to high-volume litigation.
For detailed context, see ABC Live’s in-depth analysis:
🔗 [Sanjabij Tari Cheque Bounce Guidelines]
Judicial Interpretation: Still Taking Shape
1) When Does the Hearing Occur?
Several High Courts have held that the accused must be heard after the complainant’s evidence is first recorded, including:
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Anju v. State of Kerala (Kerala HC, 2024)
Effect: A new procedural sub-stage is created.
2) What Is a “Meaningful Hearing”?
High Courts have interpreted Section 223 to require more than a symbolic opportunity. This trend includes:
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Shreya Jain v. State (NCT of Delhi) (Delhi HC, 2024)
Trend: The hearing may require document access and reasoned consideration of objections.
3) Does It Apply to Agency-Filed Complaints?
The Supreme Court has not expressly exempted Enforcement Directorate complaints, and High Courts have extended Section 223 to complaints filed by public servants, e.g.:
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Joseph M. v. Enforcement Officers (Kerala HC, 2024)
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Rashid Ali v. State of U.P. (Allahabad HC, 2024)
Effect: Economic and financial offences may face pre-cognizance litigation.
Possible Constitutional Question: Article 14
If accused in enforcement-agency complaints receive a pre-cognizance hearing, while accused in police charge-sheet cases do not, it raises a potential classification issue under Article 14 (equality of procedure).
This question has not yet been adjudicated by the Supreme Court, but future constitutional challenges are likely.
Early Beneficiaries: Litigation at the Threshold
Section 223 may eventually help filter frivolous complaints. For now:
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Magistrates may face increased paperwork,
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complainants may experience delay,
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statutory agencies may face procedural objections.
Currently, the most tangible beneficiaries are:
criminal lawyers, who now gain a new litigation stage before a case even begins.
Conclusion: Section 223 Creates a Risk of Slow-Motion Justice
Section 223 introduces a bold, but untested procedural experiment. It:
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shifts adversarial rights earlier,
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increases interpretive litigation,
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has already forced the Supreme Court to create an exception for cheque cases,
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and may invite constitutional scrutiny.
BNSS promised speedy justice, but Section 223 risks slow-motion justice at the very stage meant to reduce delay.
