The Delhi High Court has clarified that a magistrate must examine a complainant and available witnesses on oath before notifying a proposed accused under Section 223 of the Bharatiya Nagarik Suraksha Sanhita.
A division bench of Justices Navin Chawla and Ravinder Dudeja answered a reference arising from two private complaints. It held that recording the complainant’s evidence and hearing the accused are both steps preceding formal cognizance.
After examining the complainant and witnesses, the magistrate must first consider whether the complaint should be dismissed under Section 226. Notice to the accused becomes necessary only if the material supports a preliminary view that cognizance may be warranted.
The court stressed that the statutory hearing cannot be reduced to a formality. The proposed accused may argue that the complaint and supporting statements, even accepted at face value, disclose no offence. Formal cognizance may follow only after that limited opportunity has been provided.