INTRODUCTION
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973, introduces certain important changes aimed at streamlining criminal trials in India. While much attention has been given to pre-trial and post-trial stages, an important stage that has been overlooked is the pre-cognizance phase. This phase refers to the point before a Magistrate formally takes cognizance of an offence under the BNSS.
However, at this stage, the proposed accused may have certain legal avenues and strategies to seek relief. The strategic and early use of these pleas can save considerable time, prevent unnecessary harassment and protect against vexatious litigation.
RELEVANT LEGAL PROVISIONS IN BNSS
- Section 223 BNSS- Cognizance of Offences by Magistrates
Like Section 190 CRPC, this provision empowers Magistrates to take cognizance based on:
- A complaint of facts constituting an offence
- A police report
- Information from any other person or knowledge of the Magistrate
Before cognizance is taken, the accused may raise objections to the maintainability of the proceedings.
- Section 175 BNSS- Discharge at initial stage in warrant cases on police report
While formally a post-cognizance provision, courts have recognised that a Magistrate can apply judicial mind at the threshold to determine whether there is enough material to proceed.
- Section 482 BNSS (Analogous to Section 482 CrPC)- Inherent powers of High Court
Allows the High Court to quash proceedings even before cognizance, if continuation would amount to abuse of process of law.
- Section 223 (2) BNSS- Judicial Mind before process issuance
The Magistrate is required to assess whether the complaint/police report discloses an offence. This offers the accused an opportunity to submit preliminary objections.
POSSIBLE PLEAS AT THE PRE-COGNIZANCE STAGE
- Absence of Jurisdiction- If the court lacks territorial jurisdiction or subject matter jurisdiction under BNSS provisions.
- Double Jeopardy- If covered under Section 8 of BNSS read with Article 20(2) of the Constitution.
- Lack of ingredients of the offence- Demonstrating that the facts alleged, even if true, do not constitute an offence.
CONCLUSION
The BNSS framework continues to safeguard the rights of individuals even before they are formally arraigned as accused. The pre-cognizance stage acts as a crucial checkpoint, enabling the proposed accused to highlight jurisdictional errors, procedural lapses, and frivolous allegations. A proactive defence at this early juncture, supported by relevant provisions of the BNSS and constitutional remedies, ensures a fair balance between the State’s right to prosecute and an individual’s right to protection from misuse of criminal law.
