The Madras High Court has issued notice to the Centre on a plea by journalist Nakkheeran Gopal challenging the BNSS provision requiring a hearing before a Magistrate takes cognizance.
THE Madras High Court has admitted a writ petition challenging the constitutional validity of the first proviso to section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), issuing notice to the Ministry of Law and Justice and the Ministry of Home Affairs. The provision, which mandates that no cognizance of an offence shall be taken by a magistrate without giving the accused an opportunity of being heard, has been challenged as redundant, repugnant to timely justice, and ultra vires to the Constitution.
A bench comprising Chief Justice S.A. Dharmadhikari and Justice G. Arul Murugan admitted the plea filed by Nakkheeran Gopal, an investigative journalist and owner of Nakkheeran Publications. The petition seeks to lay down the correct trial procedure for criminal defamation complaints while settling conflicts between Sections 210, 223, 225, and 227 of BNSS.
What is the first proviso to Section 223(1) BNSS?
Section 223 BNSS corresponds to Section 200 of the erstwhile Code of Criminal Procedure, 1973. Both provisions deal with the examination of a complainant when a private complaint is filed before a Magistrate. However, the BNSS introduced a crucial addition: a proviso stating that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
Under the old Section 200 CrPC, the accused had no role whatsoever at the pre-cognizance stage. The Magistrate would examine the complainant and witnesses on oath, and only after taking cognizance and issuing process (summons or warrant) would the accused become involved. The new proviso fundamentally alters this by bringing the accused into the picture before cognizance itself is taken.
The petition arises from a criminal defamation complaint that Gopal had filed before the Metropolitan Magistrate, Egmore, against Isha Foundation. The petitioner states that as part of his profession, he had been publishing critical articles about alleged illegalities at Isha Foundation by Jaggi Vasudev. After these articles were published, the Foundation published a defamatory article against him, prompting him to file the complaint under section 356(1) of the Bharatiya Nyaya Sanhita (BNS).
The legal dispute between Nakkheeran and Isha Foundation has multiple dimensions. In December 2024, Isha Foundation filed a ₹3 crore defamation suit in the Delhi High Court against Nakkheeran and Google LLC, alleging that the publication had disseminated false claims accusing the organisation of coercion, exploitation, and illegal activities. That suit is currently pending before Justice Subramonium Prasad, with arguments scheduled to commence.
The present case before the Madras High Court crystallised after a pre-cognizance enquiry was conducted and Gopal’s sworn statement was recorded for establishing the ingredients of defamation. At this stage, the Magistrate insisted that summons be issued to all accused persons, affording them an opportunity of being heard under the first proviso of section 223(1) BNSS. This procedural requirement prompted Gopal to approach the high court, challenging the legality of the provision itself.
The petitioner contends that while section 223 BNSS is pari materia with section 200 of the Code of Criminal Procedure, 1973 (CrPC), the first proviso was inserted as an additional requirement under the new law. By mandating that all accused be heard before taking cognizance, the provision becomes repugnant to the delivery of timely justice, as serving summons to all accused persons is practically difficult, particularly where there are multiple accused.
The petition further highlights what it describes as inbuilt contradictions between different provisions of the BNSS. Under section 210, a magistrate can straightaway take cognizance. Section 227 permits a magistrate to issue summons if there are sufficient grounds. Section 223 provides that the Magistrate need not examine the complainant and witness if the complaint is in writing. Yet section 225 requires the Magistrate to take evidence of witnesses to decide whether sufficient grounds exist. These apparent contradictions, the petitioner argues, place the magistrate in a conundrum, making the procedure unclear and inconsistent.
What procedure have other high courts laid down for Section 223 BNSS?
Since the BNSS came into force on July 1, 2024, several high courts have grappled with interpreting the procedural requirements under section 223. The Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil (2024) laid down the following sequence:
- Complaint is filed before the Magistrate
- Magistrate examines the complainant on oath and records the sworn statement
- Magistrate examines any witnesses present and reduces the examination to writing
- If the Magistrate is inclined to take cognizance, notice is issued to the accused with copies of the complaint and sworn statements
- Accused is given an opportunity of being heard
- Magistrate decides whether to take cognizance
- If cognizance is taken, process is issued under Section 227
The Kerala High Court in Suby Antony v. Judicial First-Class Magistrate III (2025) and the Allahabad High Court in Rakesh Kumar Chaturvedi v. State of U.P. (2025) have endorsed this procedural sequence. The Karnataka High Court notably observed that the opportunity of being heard “would not mean an empty formality” and that the notice must append the complaint, the sworn statement, and statements of any witnesses.
Notably, a similar challenge to the provision is pending before the Supreme Court in Mannargudi Bar Association v. Union of India (2024). In that case, the provision has been questioned on grounds including that cognizance is taken of the offence and not the offender, that in some complaint cases there may not be an identifiable accused to whom notice can be issued, and that the provision is redundant given that under sections 225 and 226, a complaint must be dismissed if there is no identifiable accused after investigation.
The matter has been admitted and notice issued to the Ministry of Law and Justice and the Ministry of Home Affairs. The case will now proceed after the Union government files its response.
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