After considering the arguments, the Court said that unlike Section 200 of the Code of Criminal Procedure (CrPC), Section 223 BNSS provides that no cognisance can be taken without giving the accused an opportunity of being heard.
It held that the examination of the complainant and witnesses is part of the process leading to cognisance, rather than a step occurring after cognisance as under the CrPC.
The court also rejected the argument that magistrates should have discretion to issue notice either before or after recording the complainant’s statement.
It held that where examination is statutorily required, notice would ordinarily have greater meaning after the statements have been recorded, enabling the proposed accused to make an effective representation.
“The legislature clearly wanted to divert from the earlier position under the CrPC where the accused did not have a right to be heard at that stage, and faced a prolonged trial which was bound to fail. The accused can now show to the Magistrate that even taking the complaint and the statements of the complainant and the witnesses at their face value, the complaint does not disclose an offence; this is the limited right now conferred on the accused, but it must be fully granted,” the Court underscored.