ValkyaEditorial
High Court Reference

Dr. Rita Bakshi v. Seema Bajaj (2026): when must a BNSS Magistrate hear the accused?

A single judge of the Delhi High Court has declined to decide, and instead referred to a Larger Bench, a foundational sequencing question under the new BNSS: on a private complaint, must the accused be heard under the first proviso to Section 223(1) before or after the Magistrate examines the complainant on oath. A digest of the facts, the interpretive conflict over when 'cognizance' is taken, and the questions sent up for authoritative resolution.

Valkya Editorial· Legal Intelligence··8 min read
Court
High Court of Delhi
Citation
Dr. Rita Bakshi v. Seema Bajaj, CRL.M.C. 2551/2025 (Delhi HC); 2026 LiveLaw (Del) 298
Bench
Swarana Kanta Sharma, J.
Decided
18 March 2026

What makes Dr. Rita Bakshi v. Seema Bajaj significant is not what the Delhi High Court decided, but what it declined to decide. Dr. Justice Swarana Kanta Sharma, sitting as a single judge, was asked to settle a sequencing question thrown up by the Bharatiya Nagarik Suraksha Sanhita, 2023 — the code that replaced the Code of Criminal Procedure, 1973. Rather than supply an answer that two Coordinate Benches had already approached differently, the Court referred the controversy to a Larger Bench, subject to the orders of the Chief Justice. The judgment is therefore best read as a reference, not a holding: it frames the problem with care, but the law on the point remains, for now, unsettled.

The facts in brief

A private criminal complaint was filed by the respondent-complainant against eight accused persons. Among them, as accused no. 2, was the petitioner, Dr. Rita Bakshi. The complaint alleged offences under the Indian Penal Code, including cheating and criminal conspiracy with common intention (Sections 420, 120B and 34 IPC, among others).

After a brief hearing on 11 December 2024, the matter was listed before the Magistrate for pre-summoning evidence. At that stage the complainant moved an application of an unusual kind: invoking Section 223 BNSS, she asked the Magistrate to issue notice to the accused before taking cognizance and before recording the complainant's statement on oath. The Magistrate's order on that application, dated 21 January 2025, was then carried to the High Court in a petition seeking to quash it, brought by Dr. Rita Bakshi as one of the accused.

The petition — CRL.M.C. 2551/2025, with CRL.M.A. 11417/2025 — was reserved on 18 December 2025 and pronounced on 18 March 2026.

The questions

At the level of the parties, the dispute was about the timing of a single procedural step. But the timing question could not be answered without confronting a change in the text of the law. Section 223(1) BNSS introduces a first proviso with no equivalent in the old Code of Criminal Procedure: it provides that no cognizance of an offence on a complaint shall be taken by the Magistrate without affording the accused an opportunity of being heard. The CrPC contained no such pre-cognizance hearing for the accused on a private complaint.

That new safeguard creates a sequencing puzzle, because the moment at which a hearing is owed depends on the moment at which "cognizance" is taken. Section 223(1) BNSS speaks of the Magistrate examining the complainant and witnesses on oath "while taking cognizance" of an offence — a phrasing that differs from the old Section 200 CrPC, which spoke of a Magistrate "taking cognizance" of an offence on complaint examining the complainant. The altered words invite a question that the older statute did not pose so sharply: is the examination of the complainant on oath a step that precedes cognizance, or a step taken in the course of taking it?

On that hinge turns the practical issue. If cognizance is taken only after the complainant's statement is recorded, the proviso's hearing to the accused arrives at one stage; if cognizance is taken when the Magistrate first applies his mind to the complaint, the hearing must arrive earlier. The complainant's application, in effect, pressed the earlier reading.

What the Court did

The Court referred the matter. It did not finally decide it.

Justice Sharma noted that a Coordinate Bench of the same High Court, in Brand Protectors India Pvt. Ltd. v. Anil Kumar, together with some other High Courts, had taken the view that notice to the accused under the first proviso issues after the complainant's statement is recorded, on the footing that cognizance has not yet been taken at that earlier stage. That understanding, the single judge observed, sits uneasily with a body of Supreme Court authority on when cognizance is taken. In the words of the order:

The view of the Coordinate Bench appears to be at variance with several judicial precedents of the Hon'ble Supreme Court ... which indicate that cognizance is said to be have been taken when the Magistrate applies his mind to proceed under Section 200 of the Cr.P.C.
— Swarana Kanta Sharma, J.

Because two Coordinate Benches of the Court had already taken a view on the matter, judicial discipline did not permit the single judge to add a third, possibly conflicting, opinion. The proper course was to refer the controversy upward. As the order records:

this Court is of the view that the matter warrants reference to a Larger Bench of this Court, subject to orders of Hon'ble the Chief Justice, for determination of the controversy in question.
— Swarana Kanta Sharma, J.

The Registry was directed to place the judgment before the Chief Justice for constitution of a Larger Bench, and the trial proceedings were permitted to continue, subject to the outcome of the reference.

The questions referred

The Court formulated the controversy as two linked questions for the Larger Bench. The first concerns the stage at which a Magistrate is said to have taken "cognizance" of an offence on a private complaint under the BNSS — and, in particular, whether the phrase "while taking cognizance" in Section 223(1) implies that the examination of the complainant and witnesses on oath is a step taken prior to the taking of cognizance.

The second concerns the consequence for the proviso. At what stage must the Magistrate issue notice to the accused under the first proviso to Section 223(1): on a perusal of the complaint but before recording the complainant's statement on oath, or after recording such statements but before a formal decision on whether to take cognizance? These are the two readings the reference is designed to choose between, and until a Larger Bench answers them, neither can be treated as the settled position in Delhi.

Analysis

The reference is a precise illustration of how a small change in statutory wording can unsettle a doctrine that seemed long closed. Under the CrPC, the question of when cognizance is "taken" had been worked out over decades of Supreme Court authority, the orthodox line being that cognizance is taken when the Magistrate applies his mind to the offence with a view to proceeding under the relevant provisions — not by the mechanical act of recording evidence. That settled understanding did not have to bear much weight, because nothing in the old Section 200 scheme turned on giving the accused a hearing before cognizance.

The BNSS changes that. By inserting a pre-cognizance hearing for the accused, the first proviso to Section 223(1) makes the timing of cognizance operationally decisive for the first time — and the legislature simultaneously recast the surrounding language from "taking cognizance" to "while taking cognizance." The single judge's concern is that reading the new phrase to push the complainant's examination before cognizance may be difficult to reconcile with the Supreme Court's account of when cognizance occurs. Whether the new words were meant to alter that account, or merely to describe the same sequence in different language, is exactly the interpretive choice a Larger Bench must now make.

There is also a structural point worth marking. The proviso is a genuine novelty: it builds an adversarial hearing into a stage of the private-complaint process that was, under the CrPC, conducted ex parte. How that hearing is fitted into the existing architecture — before any evidence, or after the complainant's pre-summoning evidence — affects every private complaint filed under the new code. A reading that requires notice at the threshold front-loads the accused's participation; a reading that defers it preserves more of the old sequence. The stakes of the sequencing question are therefore not academic. They go to the design of an entirely new safeguard.

Why it matters

For the moment, Dr. Rita Bakshi v. Seema Bajaj leaves practitioners with a flagged conflict rather than a rule. Its value lies in mapping the fault line: it identifies the divergence between the Coordinate-Bench reading (notice after the complainant's statement) and the Supreme Court line on when cognizance is taken, and it crystallises the precise questions a Larger Bench will answer. Counsel handling private complaints under the BNSS in Delhi should treat the point as live and unresolved, and should be alert to the eventual Larger Bench decision that this reference sets in motion.

The case is the unresolved sequencing sub-question of a larger debate about the new pre-cognizance hearing. The broader contour of the Section 223 safeguard — its existence and purpose — has been examined elsewhere; what Rita Bakshi isolates is the narrower, and still open, question of when within the complaint process the hearing must be afforded. Until the Larger Bench speaks, the safest reading is that the question is genuinely open in the Delhi High Court.

Sources

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