Accepting a protest complaint on file and recording the complainant’s evidence is not the same as taking cognizance, the Supreme Court has held, ruling that where a trial court first applied its judicial mind to find a prima facie case after July 1, 2024, the accused was entitled to a hearing under the BNSS before that step was taken.
New Delhi: The Supreme Court has set aside, in part, an order of the Special Judge (SC/ST Act), Azamgarh, which found a prima facie case and issued process against two accused in a protest complaint filed in 2023, holding that cognizance was in fact taken on June 3, 2026, after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force, and that the accused should have been heard before it under the proviso to Section 223 of the BNSS [Umar and Another v. State of Uttar Pradesh and Another].
A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran confined the Special Judge’s order to a summons simpliciter and directed that the matter be heard afresh after the accused appear.
The question before the Court
The appeal turned on a single issue: whether cognizance on a protest petition filed under Section 200 of the Code of Criminal Procedure, 1973 (CrPC) had been taken before or after the BNSS took effect on July 1, 2024. The answer mattered because the proviso to Section 223 of the BNSS, unlike the corresponding CrPC provision, requires a Magistrate to give the accused an opportunity of being heard before taking cognizance of an offence on a complaint.
Background of the case
An FIR was registered on June 7, 2022, and the police filed a closure report on August 6, 2022. On a protest petition filed on October 14, 2022, further investigation was ordered under Section 173(8) of the CrPC on November 29, 2022. The police again filed a closure report on February 14, 2023, which too was challenged by a protest petition on April 28, 2023.
The complaint was taken on board on October 11, 2023 and posted for the complainant’s statement. On March 6, 2024, the complainant was examined as PW1, her husband as PW2 and a doctor as PW3. No further order was passed for nearly two years, until the Special Judge, by a detailed order dated June 3, 2026, found that the offence was prima facie made out and issued process against the accused.
What the parties argued
Senior Advocate Shoeb Alam, for the accused, argued that the June 3, 2026 order was the one by which cognizance was taken, at a time when the BNSS was in force. Relying on Parvinder Singh v. Directorate of Enforcement, 2026 SCC OnLine SC 903, he contended that the BNSS procedure applies after its commencement even where the offence was registered earlier, and that the accused must be heard before cognizance is taken.
The State, represented by Advocate-on-Record Srishti Singh, maintained that cognizance had been taken before the BNSS came into force. Senior Advocate Sayed Waseem Quadri, for the complainant, argued that no formal order is needed to show that cognizance has been taken, that cognizance must not be confused with the issue of process, and that cognizance was taken the moment the complaint was accepted on the Court’s file. He relied on CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 46 and Zunaid v. State of Uttar Pradesh, (2023) 14 SCC 576.
Cognizance is the point of judicial application of mind
The Bench noted that CREF Finance treats cognizance as the stage at which the Court, on perusing the complaint and finding that it discloses an offence, decides to proceed, and that cognizance is of the offence rather than the offender. Zunaid set out the three options open to a Magistrate on receiving a police report, one of which is to take cognizance on the original complaint and examine the complainant and witnesses under Section 200 of the CrPC. Parvinder Singh, the Court observed, holds that taking cognizance is an application of judicial mind, which is also the position under the CrPC, with the BNSS adding a requirement to hear the accused before that stage is reached.
Whether cognizance had been taken, the Court said, depends on how the trial court actually dealt with the police report or protest complaint. Examining the record, it found that the order on the protest petition had only directed an inquiry by the Court and required the complainant’s evidence under Section 200 of the CrPC, without taking cognizance. It was the order of June 3, 2026 that recorded a prima facie finding. The Bench held:
“From a reading of the first order passed, taking on record the complaint and requiring the complainant’s presence for taking evidence, as also the second order passed finding prima facie case made out on which process was issued, we are of the opinion that it is the second order passed on 03.06.2026 that the judicial mind was applied, as prima facie case was found, deeming the cognizance having been taken. That being so, the Court had to summon the accused and hear him before such cognizance was taken.”
Order confined to summons
The Court set aside the June 3, 2026 order to the extent that it recorded a prima facie case and took cognizance, and confined it to a summons simpliciter. The accused have been directed to appear before the trial court within one month, and on that day, or on any other day if the complainant or her counsel is absent, the matter is to be heard and appropriate orders passed.
The appeal was allowed without any observation on the merits of the case. The allegations against the accused remain to be examined by the trial court after hearing them, and they are entitled to the presumption of innocence.
Why the ruling matters
Many complaint cases filed under the CrPC were still at the pre-summoning stage when the BNSS took effect. This order makes clear that the date on which a complaint was filed or taken on file does not by itself fix the date of cognizance. Where the trial court’s first real application of mind, marked by a prima facie finding, came after July 1, 2024, the pre-cognizance hearing under the proviso to Section 223 of the BNSS must be given, and an order that skips it can be reduced to a bare summons.
Case Title: Umar and Another v. State of Uttar Pradesh and Another
Case Number: Criminal Appeal arising out of SLP (Crl.) No. 14343 of 2026
Citation: 2026 INSC 1058
Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran, Supreme Court of India
Date of Order: September 23, 2026
Appearance: Senior Advocate Shoeb Alam for the appellants; Advocate-on-Record Srishti Singh for the State; Senior Advocate Sayed Waseem Quadri for the complainant