Section 223 BNSS

Source: Madhya Pradesh High Court

Why in News? 

A Single Bench of the Madhya Pradesh High Court, comprising Justice Himanshu Joshi, in Vinay Pratap Singh v. Pushpendra Singh,(2026), held that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates that an accused be given an opportunity of hearing before a Magistrate takes cognizance, does not impose an obligation upon the complainant to supply the entire evidence to the accused at the threshold stage of cognizance proceedings. 

• The Court set aside the Trial Court's order dismissing the private complaint solely on account of the complainant's failure to supply documents and electronic evidence to the proposed accused, and restored the complaint with a direction to proceed in accordance with law.

What was the Background of Vinay Pratap Singh v. Pushpendra Singh (2026) Case? 

• The applicant-complainant, Vinay Prakash Singh, was engaged in the lawful business of supplying gravel through Hyva dumpers to a construction company. On October 30, 2023, approximately 1800 litres of diesel were procured for operational purposes and temporarily stored at his farmhouse due to the absence of a nearby fuel station. 
• The complainant alleged that the respondents, including Pushpendra Singh and two others, on account of prior business rivalry, pressured him to arrange an illegal advance payment of ₹1 crore and threatened to implicate him in false criminal cases. 
• On the same evening, the respondents, allegedly along with certain police officials, unlawfully entered the farmhouse, assaulted the complainant, threatened him, and forcibly removed the fuel without following any lawful seizure process. 
• The complainant also alleged that a subsequent FIR registered at Mauganj Police Station, alleging robbery, was fabricated as a counterblast to shield the illegal acts committed against him. He relied upon electronic evidence, including CCTV footage, to challenge the prosecution's narrative. 
• The complainant instituted a private complaint alleging offences of voluntarily causing hurt (Section 323 IPC), obscene songs and actions (Section 294 IPC), criminal intimidation (Section 506 IPC), and acts done in furtherance of common intention (Section 34 IPC). 
• During proceedings, the complainant moved an application under Section 223(1) of BNSS. However, by order dated January 17, 2026, the Magistrate directed the complainant to supply all documents and electronic evidence to the proposed accused, holding that a meaningful hearing could not be afforded without such disclosure, and further directed that non-compliance would result in dismissal of the complaint. 
• On January 22, 2026, the complaint was dismissed solely for failure to comply with the said direction. Aggrieved, the applicant filed a petition before the High Court under Section 528 of the BNSS.

What were the Court's Observations? 

• On the Scope of Section 528 BNSS: The Court noted that the scope of interference under Section 528 BNSS is to prevent abuse of the process of law. For its applicability, the Court must examine whether the impugned order suffers from illegality, perversity, or material irregularity. 
• On the Purpose of the Proviso to Section 223(1) BNSS: The Court held that the proviso to Section 223(1) BNSS is intended to ensure that the principles of natural justice are followed, meaning that the accused is afforded an opportunity of hearing before cognizance is taken. However, such an opportunity does not automatically translate into an obligation to supply the entire evidence to the accused at the threshold stage of cognizance proceedings. 
• On the Trial Court's Error: The Court held that the Trial Court erred in mechanically dismissing the complaint without examining whether partial compliance with the impugned direction was sufficient, or assessing the merits and procedural fairness of the complaint in totality. Such mechanical dismissal of a complaint involving serious allegations results in a miscarriage of justice. 
• On Restoration of the Complaint: The Court allowed the petition, set aside the impugned order dated January 22, 2026, and restored the complaint case, directing the Trial Court to proceed in accordance with law.

What is Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023? 

About: 

• The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) received Presidential assent on December 25, 2023 and came into force on July 1, 2024, repealing the Criminal Procedure Code, 1973. 
• Section 223 of BNSS corresponds to Section 200 of the erstwhile Criminal Procedure Code, 1973. 
• The introduction of a proviso to Section 223(1) has completely changed the manner in which Magistrates deal with private complaints. 

Text of Section 223 BNSS: 

Section 223(1): 

• A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, and the substance of such examination shall be reduced to writing and signed by the complainant, witnesses, and the Magistrate. 

First Proviso (Key Change): 

• No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 

Section 223(2): 

• For complaints against public servants, the Magistrate shall not take cognizance unless the public servant is given an opportunity to make assertions about the incident and a report from the superior officer is received.

Legislative Intent and Objectives: 

The legislature, following the principle of "audi alteram partem," introduced this statutory safeguard with two objectives: 

1. To provide the proposed accused in a private complaint an opportunity of being heard before cognizance and summoning. 
2. To discourage filing of private criminal complaints laden with subterfuges, concealments and misrepresentation of facts.