Section 223 of BNSS (corresponding provision is Section 200 CrPC) describes the procedure regarding examination of complainant, where sub-section 1 reads:
“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.”
As a consequence, the magistrate cannot order for an investigation, though empowered under Section 175(3) of the new code [corresponding Section 156(3)] without giving the accused an opportunity of being heard; a right that is granted for the first time ever. Furthermore, magistrates are also statutorily obliged under Section 175(3) to consider submissions made by the police (for not registering an FIR) before ordering an investigation.
In the old code, accused persons were given a chance to be heard after cognizance is taken and before framing of charges. Though the new code appears to protect the interest of an accused person before any action is initiated against them, in confirmation with the principles of natural justice, in my opinion, the principle is not only misapplied at this stage of “pre-cognizance” but is also prone to adverse consequences, given the police’s approach to the judicial process in the past. This “pre-cognizance” hearing, which is unknown to criminal jurisprudence, may likely lead to miscarriage of justice and could potentially become a weapon in the hands of powerful, unscrupulous persons.
Source: Barandbench
