The Supreme Court has held that where the Court applies its judicial mind and finds a prima facie case after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force, the accused must be heard before cognizance is taken, as mandated by the proviso to Section 223 BNSS.
A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran delivered the ruling in Umar & Anr. v. State of Uttar Pradesh & Anr., 2026 INSC 1058, on September 23, 2026. The Court clarified that the mere filing or taking on record of a protest petition does not necessarily amount to taking cognizance.
The central question was whether cognizance on a protest petition filed under Section 200 CrPC had been taken before or after the BNSS came into force on July 1, 2024.
The FIR was registered on June 7, 2022. After investigation, the police submitted a closure report on August 6, 2022. A protest petition was filed on October 14, 2022, following which further investigation under Section 173(8) CrPC was ordered.
A second closure report was submitted on February 14, 2023, followed by another protest petition on April 28, 2023. The complaint was taken on board on October 11, 2023, and the complainant and other witnesses were examined on March 6, 2024.
The matter thereafter remained pending until June 3, 2026, when the Special Judge, SC/ST, Azamgarh, passed a detailed order finding a prima facie case and issuing process against the accused.
Senior Advocate Shoeb Alam, appearing for the accused, argued that the June 3, 2026 order was the order by which cognizance was actually taken.
Since the BNSS had already come into force, it was argued that the accused was required to be given an opportunity of being heard before cognizance could be taken under the proviso to Section 223 BNSS. Reliance was placed on the Supreme Court's decision in Parvinder Singh v. Directorate of Enforcement.
The complainant, however, argued that cognizance had already been taken before the BNSS came into force. It was contended that there is no requirement of a formal order recording cognizance and that cognizance is distinct from the subsequent issuance of process.
The Bench examined the orders passed in the case and noted that the earlier order on the protest petition had merely directed that an inquiry be conducted by the Court and that the complainant be produced for evidence under Section 200 CrPC.
The complainant was subsequently examined as PW-1, her husband as PW-2 and a doctor as PW-3. However, no order applying judicial mind to determine whether a prima facie case existed was passed at that stage.
The Supreme Court therefore held that cognizance had not been taken at the earlier stage.
The Court held that it was the June 3, 2026 order in which judicial mind was applied and a prima facie case was found that amounted to taking cognizance.
The Bench observed that under the BNSS, taking cognizance involves the application of judicial mind, and the BNSS additionally requires the accused to be heard before such judicial application of mind in the circumstances covered by the proviso to Section 223.
Accordingly, the accused ought to have been heard before the Special Judge concluded that a prima facie case existed and took cognizance.
The Supreme Court set aside the June 3, 2026 order to the extent that it found a prima facie case and took cognizance.
The Court instead confined the order to a “summons simplicitor” and directed the accused to appear before the trial court within one month.
On appearance, the matter is to be heard and an appropriate order passed after hearing the complainant or her counsel.
The Supreme Court made it clear that the order does not contain any observation on the merits of the case and allowed the appeal accordingly.
Case: Umar & Anr. v. State of Uttar Pradesh & Anr.
Citation: 2026 INSC 1058
Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran
Representation:-
For Petitioner(s) :Mr. Shoeb Alam, Sr. Adv. Mr. Rizwan Ahmad, AOR Mr. Himanshu Gupta, Adv. Mr. Amir Kaleem, Adv. Mr. Shivam Yadav, Adv. Mr. Mohd Shoaib Ansari, Adv. Mr. Prakhar Verma, Adv.
For Respondent(s) :Ms. Srishti Singh, AOR Mr. Ghanshyam Singh, Adv. Mr. Sayed Waseem Quadri, Sr. Adv. Mr. Mushtaque Ahmad, Adv. Mr. Anwar Ahmad, Adv. Mr. Vinay Kumar Sharma, Adv. Mr. Vivek Kumar, Adv. Mr. Anubhav, Adv. Mr. Ramjee Pandey, AOR Mr. Inam Ahmad, Adv.
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