The End of Ex-Parte Cognizance: Supreme Court Upends Private Complaint Practice Under Section 223(1) BNSS

For decades, criminal defense lawyers in India have operated under a rigid procedural truth: at the pre-cognizance stage of a private complaint, the accused has absolutely no locus standi. Under the old Code of Criminal Procedure, 1973 (CrPC), a Magistrate evaluating a complaint under Section 200 or 202 would not hear the accused. You simply waited for the summons, appeared, and then fought the battle.

In a landmark 2026 ruling, the Supreme Court has completely dismantled this old regime, interpreting the Bharatiya Nagarik Suraksha Sanhita (BNSS) in a way that fundamentally alters the daily practice of criminal law in trial courts.

The Section 223(1) Revolution: A New Article 21 Safeguard

The most consequential development for the Bar this year is the Supreme Court's strict interpretation of the first proviso to Section 223(1) of the BNSS. The proviso mandates that a Magistrate must give the accused an opportunity to be heard before taking cognizance of an offence in a complaint case.

Many prosecutors and trial courts initially treated this as a mere procedural formality, an optional step that could be bypassed in the interest of speedy justice. The Supreme Court has now put an end to that judicial indiscipline. The Court categorically held that non-compliance with the Section 223(1) hearing requirement renders the cognizance order void ab initio.

"The right to be heard prior to the issuance of process is no longer a procedural luxury; it is a substantive fair-trial safeguard embedded within Article 21 of the Constitution," the Court indicated.

What this means for your practice: If you represent an accused facing a private complaint—including economic offences like the PMLA—you now have a statutory right to intervene and throttle frivolous litigation at the inception. Crucially, the Supreme Court clarified that if cognizance is taken after the BNSS came into force (July 1, 2024), this hearing requirement applies even if the underlying complaint was filed earlier. Defense counsel must immediately audit their pending matters: if a Magistrate took cognizance of a pre-BNSS complaint post-July 1 without issuing a prior notice to your client, that order is legally dead and must be challenged via a quashing petition or revision.

Custody and Counsel: The Section 187 and 38 Balancing Act

While Section 223(1) hands a massive weapon to the defense, the Supreme Court's rulings on police custody under the BNSS have heavily favoured investigative agencies, albeit with defined boundaries.

Under Section 167 of the old CrPC, police custody could generally only be sought within the first 15 days of remand (the legendary Anupam J. Kulkarni rule). Section 187 of the BNSS changed this, allowing police custody to be staggered across the initial 40 or 60 days. Defense lawyers have vehemently argued against this, noting it keeps the accused under a perpetual Sword of Damocles, chilling their ability to seek bail.

The Supreme Court has now affirmed the plain reading of Section 187. Police custody—up to an aggregate of 15 days—can indeed be granted in parts during the initial detention period. The Court warned Magistrates not to prematurely shut down police discretion to seek deferred custody. For bail lawyers, this means securing default or regular bail within the first 60 days has become exponentially more difficult, as investigative agencies will strategically "reserve" days of police custody to scuttle bail hearings.

To balance this, the Court stepped in to clarify Section 38 of the BNSS regarding an arrested person's right to an advocate. The Court held that while the accused has an absolute right to meet their advocate during interrogation, the counsel cannot demand continuous physical presence throughout the questioning. This is a pragmatic, if slightly disappointing, ruling for the defense bar. You can consult your client, but you cannot sit in the room and object to every question the Investigating Officer asks.

High Courts Push Back Against State Overreach

While the Supreme Court is settling the macro-jurisprudence of the BNSS, High Courts across the country are aggressively policing the ground-level application of the new criminal codes (BNS and BNSS).

In a stinging rebuke to trigger-happy executive magistrates, the Allahabad High Court ordered the State to pay ₹25,000 per day in compensation to citizens illegally detained beyond 24 hours under the preventive detention provisions of the BNSS in a breach-of-peace context. This creates direct financial liability for illegal detentions and is a precedent every human rights and defense lawyer should have bookmarked.

Similarly, the Andhra Pradesh High Court provided much-needed clarity on petty offences under the Bharatiya Nyaya Sanhita (BNS). The Court held that theft of property worth less than ₹5,000 is strictly non-cognizable under the BNS. Police cannot register an FIR or begin an investigation without prior permission from a Magistrate. This effectively decriminalizes the immediate arrest power for petty thefts, a major step in reducing the overcrowding of undertrials.

The Takeaway

The 2026 judicial developments show our Constitutional courts actively wrestling with the new criminal framework. The message from the higher judiciary is clear: the BNSS is not a blank cheque for the State. While the police have gained staggered custody (Section 187), the defense has gained unprecedented pre-cognizance locus (Section 223) and strict scrutiny over procedural lapses.

For the practicing advocate, the era of relying solely on CrPC precedents is over. If you are not aggressively wielding the new procedural safeguards—like demanding a pre-cognizance hearing or challenging arrests for petty BNS offences—you are doing your client a disservice. The law has changed, and it is time our trial strategies changed with it.