![Cognizance Taken Only When Prima Facie Case Found, Accused Must Be Heard Under Section 223 BNSS: Supreme Court in Umar v. State of Uttar Pradesh [2026 INSC 1058]](/assets/images/article-criminal.svg)
Quick Answer: Cognizance is taken when the court first applies its judicial mind and finds a prima facie case, not when it merely takes a protest complaint on record. Where that happens after 1 July 2024, the proviso to Section 223 of the BNSS requires the accused to be heard first. The Supreme Court reduced a Special Judge's June 2026 order to a "summons simplicitor" and directed that the accused be heard before cognizance.
In Umar and Anr. v. The State of Uttar Pradesh & Anr. (2026 INSC 1058), the Supreme Court held that in a protest-petition complaint the Special Judge (SC/ST), Azamgarh, had applied judicial mind and in effect taken cognizance only on 03.06.2026, when he found a prima facie case and issued process, and not when the complaint was taken on board in 2023 (paras 11–12). Since the BNSS had come into force by then, the accused had to be heard before cognizance under the proviso to Section 223 BNSS (paras 4, 10, 12). A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran set aside the order to the extent it found a prima facie case and took cognizance (para 13).
Status: Order dated 03.06.2026 (Annexure P26) set aside to the extent it found a prima facie case and took cognizance, and confined to a summons simplicitor; appeal allowed without observations on merits (paras 13–14).
Headnote: When Is Cognizance Taken on a Protest Petition After the BNSS?
Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 223 proviso – Code of Criminal Procedure, 1973 – Sections 173(8), 190(1)(a), 200 – Protest petition – Closure report – Cognizance – Application of judicial mind – Transition from Cr.PC to BNSS – Pre-cognizance hearing of the accused – Issuance of process – Summons simplicitor.
Held: (i) The question whether cognizance was taken before or after the BNSS came into force on 01.07.2024 depends on the manner in which the court proceeded with the police report or protest complaint (paras 2, 11).
(ii) Cognizance is the application of judicial mind; under the BNSS, a requirement is added to hear the accused before judicial mind is exercised (para 10).
(iii) Taking the protest complaint on record and directing the complainant's evidence under Section 200 Cr.PC was not cognizance; the court required evidence before deciding (paras 11–12).
(iv) The order of 03.06.2026, finding a prima facie case and issuing process, was the point at which judicial mind was applied, so the accused had to be heard before it (para 12).
(paras 10–13)
Case Details: Umar v. State of Uttar Pradesh (2026 INSC 1058)
Final Outcome: Appeal allowed; order dated 03.06.2026 set aside to the extent of finding a prima facie case and taking cognizance, and confined to a summons simplicitor; accused to appear within one month and be heard before orders are passed.
Case: Umar and Anr. v. The State of Uttar Pradesh & Anr.
Neutral Citation: 2026 INSC 1058
Case No.: Criminal Appeal No. ___ of 2026 (arising out of SLP (Crl.) No. 14343 of 2026)
Court: Supreme Court of India (Criminal Appellate Jurisdiction) – Non-Reportable
Date of Decision: 23 September 2026
Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran (Order; no named author)
Relevant Acts & Sections: Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 223 (proviso); Code of Criminal Procedure, 1973 – Sections 173(8), 190(1)(a), 200
Impugned Order: Order dated 03.06.2026 of the Special Judge (SC/ST), Azamgarh, finding a prima facie case and issuing process (Annexure P26) (paras 3, 11, 13)
Counsel: Mr. Shoeb Alam, Senior Advocate, for the appellants-accused; Ms. Srishti Singh, Advocate on Record, for the State; Mr. Sayed Waseem Quadri, Senior Advocate, for the complainant (paras 4–6)
Source: Supreme Court of India (official website)
Key Holdings of the Supreme Court
- Whether cognizance was taken before or after the BNSS depends on how the court actually dealt with the report or protest complaint (para 11).
- Under both the Cr.PC and the BNSS, cognizance is the application of judicial mind; the BNSS adds the requirement of hearing the accused before that (para 10).
- An order taking the protest complaint on record and calling for the complainant's evidence under Section 200 Cr.PC is not cognizance (paras 11–12).
- Judicial mind was applied, and cognizance deemed taken, only on 03.06.2026 when a prima facie case was found and process issued (para 12).
- As this was after 01.07.2024, the accused had to be summoned and heard before cognizance (para 12).
Brief Facts of the Case
An FIR was registered on 07.06.2022 and the police filed a Closure Report on 06.08.2022. On a protest petition filed on 14.10.2022, further investigation under Section 173(8) Cr.PC was ordered on 29.11.2022 (para 3).
A second Closure Report was filed on 14.02.2023, followed by another protest petition on 28.04.2023. The complaint was taken on board on 11.10.2023 and posted for the complainant's statement, which, along with those of her witnesses, was recorded on 06.03.2024 (para 3).
The matter then remained pending until 03.06.2026, when the Special Judge (SC/ST), Azamgarh, by a detailed order found a prima facie case and issued process against the accused (paras 3, 11).
The accused argued that this was the order taking cognizance, passed after the BNSS came into force, and that they ought to have been heard under the proviso to Section 223 BNSS (para 4).
Issues Before the Supreme Court
- Whether cognizance on the protest petition was taken before or after the BNSS came into force on 01.07.2024 (para 2).
- Whether the accused were entitled to a hearing before cognizance under the proviso to Section 223 BNSS (paras 4, 12).
Court's Findings and Reasoning
Rival submissions (paras 4–6): The accused relied on Parvinder Singh v. Directorate of Enforcement to say that BNSS procedure applies even to earlier crimes and requires a pre-cognizance hearing. The State said cognizance was taken before the BNSS, and the complainant, relying on CREF Finance and Zunaid, argued that no formal order is required and cognizance was taken when the complaint was accepted.
Meaning of cognizance (paras 7–9): CREF Finance held that cognizance is of the offence, not the offender, and is distinct from issuance of process; Zunaid set out the Magistrate's three options on receiving a police report, including taking cognizance under Section 190(1)(a) and examining the complainant under Section 200.
BNSS adds a hearing (para 10): Following Parvinder Singh, taking cognizance is the application of judicial mind, and under the BNSS the accused must be heard before that judicial mind is exercised.
No cognizance in the first order (para 11): The order on the protest petition (Annexure P23) only found an inquiry by the court justified and directed the complainant's evidence under Section 200 Cr.PC; it did not take cognizance.
Cognizance on 03.06.2026 (para 12): Judicial mind was applied only when the court found a prima facie case on 03.06.2026, so the accused had to be summoned and heard before cognizance was taken.
Final Outcome and Directions
- Annexure P26 order dated 03.06.2026 is set aside to the extent that a prima facie case was found and cognizance taken, and is confined to a summons simplicitor (para 13).
- The appellants shall appear before the court within one month, and the matter shall then be heard and appropriate orders passed, even if the complainant or her counsel is absent on that day (para 13).
- The appeal is allowed without any observations on merits; pending applications rejected (paras 14–15).
Legal Principle Laid Down
In a protest-petition case, cognizance is taken when the court first applies its judicial mind and finds a prima facie case, not when it merely takes the complaint on record and directs the complainant's evidence under Section 200 Cr.PC. If that application of judicial mind occurs after the BNSS came into force on 01.07.2024, the proviso to Section 223 BNSS applies and the accused must be heard before cognizance is taken.
Precedents Relied Upon
- Parvinder Singh v. Directorate of Enforcement, 2026 SCC OnLine SC 903 – Followed – cognizance is application of judicial mind; under the BNSS the accused must be heard before it. Discussed at paras 4, 10.
- CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., (2005) 7 SCC 46 – Considered – cognizance is of the offence, distinct from issuance of process. Discussed at paras 6–8.
- Zunaid v. State of Uttar Pradesh & Ors., (2023) 14 SCC 576 – Considered – options of the Magistrate on a police report. Discussed at paras 6, 9.
Important Paragraphs of the Judgment
Verbatim extracts from the judgment. For the full text, refer to the judgment PDF below.
Para 10: "This is the position even under the Cr.PC, but under the BNSS there is a requirement added to hear the accused before exercising the judicial mind."
Para 11: "Essentially, it will depend upon the manner in which the Court has proceeded with a report filed by the police, or a protest complaint, for which we have to look at the various proceedings in the present case."
Para 11: "Hence, the Court did not take cognizance at that stage and required the evidence of the complainant which was taken on 06.03.2024."
Para 12: "That being so, the Court had to summon the accused and hear him before such cognizance was taken."
Para 14: "The appeal stands allowed without any observations on the merits of the matter."
Practical Impact of the Ruling
- For accused persons: In complaints pending from the Cr.PC era, if the court finds a prima facie case only after 01.07.2024, the accused can insist on a pre-cognizance hearing under Section 223 BNSS (paras 10, 12).
- For complainants: Taking a protest complaint on record and recording evidence does not by itself amount to cognizance; delay in passing orders can bring the case under BNSS procedure (paras 3, 11–12).
- For Magistrates and Special Courts: Courts must identify the order in which judicial mind was applied and, if after the BNSS, hear the accused before taking cognizance (paras 11–12).
- For practitioners: An order issuing process without a pre-cognizance hearing can be pared down to a summons simplicitor rather than quashed outright (para 13).
FAQs on Cognizance Under Section 223 BNSS
1. What did the Supreme Court decide in Umar v. State of Uttar Pradesh?
It held that cognizance on the protest complaint was taken on 03.06.2026, after the BNSS came into force, so the accused had to be heard first; the order was confined to a summons simplicitor (paras 12–13).
2. Does taking a complaint on record amount to cognizance?
Not in this case. The court only took the complaint on board and directed the complainant's evidence under Section 200 Cr.PC, without applying judicial mind to find a prima facie case (paras 11–12).
3. What does the proviso to Section 223 BNSS require?
As noted by the Court, it requires that the accused be given an opportunity of being heard before cognizance is taken on a complaint, which is a departure from the Cr.PC (paras 4, 10).
4. What precedents did the Court consider?
Parvinder Singh v. Directorate of Enforcement, CREF Finance Ltd. v. Shree Shanthi Homes and Zunaid v. State of Uttar Pradesh (paras 4, 6–10).
5. What happens next in the trial court?
The accused must appear within one month, and the court must hear the matter and pass appropriate orders, even if the complainant or her counsel is absent on that day (para 13).
Keywords: 2026 INSC 1058, Umar v. State of Uttar Pradesh, Section 223 BNSS, pre-cognizance hearing, cognizance protest petition, Section 200 CrPC, closure report, Cr.PC to BNSS transition, Parvinder Singh v. Directorate of Enforcement, CREF Finance, Zunaid, summons simplicitor, Special Judge SC/ST Azamgarh, Supreme Court non-reportable judgment
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Download Judgment PDF – Umar v. State of Uttar Pradesh
Judgment PDF: 2026 INSC 1058 – Umar and Anr. v. The State of Uttar Pradesh & Anr. (SLP (Crl.) No. 14343 of 2026) – Download Judgment PDF
Source: Supreme Court of India (official website).