The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is accused of being mostly old wine in a new bottle but there are important and useful changes which the legislature has built. The procedure of pre-cognizance hearings in complaint-cases set out at Section 223(1) of the BNSS is 1 of these changes and is much reviled as being largely cork tainted in context of the general paradigm of prosecutions in our jurisdiction. We argue that Section 223(1) has the potential to be an important facet of justice delivery.
We quote Section 223(1):
223. Examination of complainant.—(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard…”
(emphasis supplied)
While legislative intent is unclear (the BNSS bill’s notes on clauses state only what the section does), a pre-cognizance hearing is an important tool to weed out blatant abuse of process and fundamental jurisdictional errors. We must assume that this is what Parliament intended.
Some may deride such hearings as unnecessary in complaints filed by agencies like the Directorate of Enforcement (ED). Others may argue that such hearings are superfluous given that Special Courts decline cognizance often enough even without hearing proposed accused. Unsurprisingly, the proviso to Section 223(1) BNSS is already under challenge in Mannargudi Bar Association v. Union of India and Ors inter-alia on grounds that such hearings are redundant.
This new procedure demonstrates that (contrary to popular belief) renaming India’s criminal laws is not merely cosmetic—Parliament and the BNSS’ draftsmen very obviously intended such hearings as a step towards Nyaya and Suraksha for a Nagarik accused in a complaint case (‘proposed accused’ for the purpose of this article).
The procedure is not without stumbling blocks that will need to be addressed in due course, including (i) further delay in already slow criminal trials, (ii) arguable redundancy and lack of distinctiveness from pre-charge hearings, and (iii) potential exclusion of those summoned as accused in supplementary complaints.
To put delay in perspective, under the now repealed Code of Criminal Procedure, 1973 (CrPC), a proposed accused had no right to be heard by a criminal court till it took ‘cognizance’, i.e. recorded its satisfaction that there is ‘sufficient ground’ to proceed. Some may argue that a criminal justice system plagued by delay, there is little justification to grant proposed accused a pre-pre-trial hearing. The ED, however, is firmly on the other side of the fence.
Despite the recent slew of bail orders against the ED on grounds that speedy trial is unlikely, the ED has (quite magnanimously) embraced pre-cognizance hearings in Kushal Kumar Agarwal v. Directorate of Enforcement. While doing so, the ED argued only that (i) the court should consider only the prosecution’s complaint and documents at this stage, and (ii) there should only be one pre-cognizance hearing on the first prosecution complaint, but not on supplementary complaints.
While the Court declined to decide either argument, these two arguments neatly frame the most significant stumbling blocks to the new pre-trial procedure.
Applying the proviso to Section 223(1) BNSS to the Prevention of Money Laundering Act, 2002 (PMLA) can result in (i) granting pre-cognizance hearings nearly indistinguishable from pre-charge hearings (arguably at odds with the right to speedy trial) and (ii) denying such opportunity to accused summoned post-cognizance (arguably at odds with the right to equality).
If a court supplies documents and hears proposed accused at length pre-cognizance there is arguably little left to be argued pre-charge. A Nyaya and Nagarik focused criminal justice system requires more than going through the motions of a statutory pre-cognizance and pre-charge hearings. The former must focus on fundamental errors of jurisdiction or a complete lack of material against the proposed accused.
How a pre-charge hearing will actually pan out after a pre-cognizance hearing remains to be seen. In two recent and widely reported cases (Sonia Gandhi Rathi Steel) Special Courts refused to take cognizance. The findings of fundamental jurisdictional deficiencies in both encourages us to weigh the likely delay (if not in trial, then in the ED’s all-but-certain appeals) against frivolous prosecution. In any event, delay is not a good enough reason to skip it. Parliament, presumed to know existing law, must have been conscious of the fact that speedy trial cannot be secured at the cost of fairness.
Pre-cognizance hearings also set the stage for equality-based challenges, given how often the ED files supplementary complaints against additional accused. This power, alien to private complaints, is enabled by Explanation (ii) to Section 44(1)(b) of the PMLA.
Cognizance can be taken only once, of the offence and not of the offender, per present judicial wisdom, formulated under now-repealed criminal procedure codes. This means only 1 order on cognizance in PMLA cases, since the PMLA contains only one substantive criminal offence: Money-laundering. Though the ED argued that proposed accused in supplementary complaints are not entitled to a pre-cognizance hearing in Kushal Kumar, the distinction is difficult to justify.
Take, for example, the Patna High Court’s recent decision in Pushpraj Bajaj v. Directorate of Enforcement where it set aside a cognizance order for failure to grant a pre-cognizance hearing, but after the ED had filed 3 supplementary complaints. On remand, the Special Court must now consider whether the pre-cognizance hearing extends only to the 8 accused in the first prosecution complaint, or also to the 27 additional accused in the 3 supplementary complaints. There is no justifiable distinction between the two classes of accused.
The ‘accused’ referred to in the first proviso to Section 223(1) BNSS must therefore include all accused, lest it fall afoul of Article 14 of the Constitution or dilute Parliament’s intent. Even police cases would benefit equally from pre-cognizance hearings (though the BNSS is yet to provide one).
Framed in terms of existing offence-centric jurisprudence, borne out of now-repealed codes, it is easy to see why some may consider pre-cognizance hearings redundant.
However, with the shift from a Danda Sanhita (penal code) towards a Nyaya Sanhita (justice code), and from a Danda Prakriya Sanhita (criminal procedure code) towards a Nagarik Suraksha Sanhita (citizen protection code), it is high time to rethink cognizance as an offender-centric, rather than an offence-centric process. Rathi Steel and (politics aside) Sonia Gandhi are a great starting point.
This shift in mindset towards Nyaya and Nagarik Suraksha need not wait years for solicitors, counsel, and judges to take up the cudgels. It was the Parliament in 2023 that has brought us this far in rethinking criminal justice. Parliament alone that can finish the thought sooner rather than later.
