Inferring application of mind in orders taking cognizance.

N. Venkatesh Kamath, Advocate, Bengaluru

The Supreme Court has reiterated time and again that criminal law cannot be set into motion as a matter of course and that the order of the Magistrate taking cognizance ought to reflect ‘application of mind’. The degree to which this application is necessary has been under the cloud in different cases before the Supreme Court. Nevertheless, the Supreme Court now, in its pronouncement in Anurag Bhatnagar v. State (NCT of Delhi)?1, has settled the position of law in this regard.

Oftentimes in practice, given the workload of a Magistrate, it is impossible for him/her to write detailed orders at every stage, of each case. This was taken note of in Kanti Bhadra Shah v. State of W.B.?2. Thus, the Magistrates record that they have perused the case diary and the material on record and thereafter, if sufficient ground is made out, he/she issues summons/warrant as per the Code of Criminal Procedure (“CrPC”) (“orders in question”).

In this article, I explore whether the orders in question passed by Magistrates demonstrate sufficient 'application of mind' and whether the required degree of such application varies between cases instituted on a private complaint and those arising from a police report. I would also briefly delve into the paradigm shift qua private complaints under the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS, 2023”) to ascertain its impact on the orders in question.

An order- similar to the order in question- was passed in B.S. Yeddyurappa v. CID?3, wherein the Karnataka High Court held that such orders do not even bear a semblance of application of mind. As will be seen hereunder, in at-least two recent Supreme Court judgments, the law laid down is otherwise.

The Law on Taking Cognizance Broadly: In Bhushan Kumar v. State (NCT of Delhi)?4, while observing Sections 190 and 204 of the CrPC (corresponding to Sections 210 and 227 of the BNSS, 2023 respectively) the Supreme Court has held that taking ‘cognizance’ refers to ‘becoming aware of’ and in a legal context, it refers to the court or the judge ‘taking note of’, judicially. In other words, it refers to the stage when the Magistrate takes judicial notice of an offence and initiates subsequent proceedings accordingly. As per Section 190, CrPC a Magistrate may take cognizance of an offence in three instances: a) upon receiving a complaint; b) upon police report; c) upon information received from any person or upon his/her own knowledge. Section 204 of the CrPC categorically states that if the Magistrate taking cognizance opines that there is ‘sufficient ground for proceeding’, he/she shall issue summons or warrant, as the case may be. Thus, at this stage, the Magistrate has to apply his/her mind to the facts of the case as averred in the complaint or police report and has to evaluate whether there is ‘sufficient ground for proceeding’. The Supreme Court has held that this exercise of the Magistrate in considering and applying his/her mind cannot be a bare exercise, an empty formality, but is significant because he/she at this stage exercises judicial discretion. It is pertinent to note that cognizance is taken of the offence rather than of the offender. As observed by the Supreme Court in State of Gujarat v. Mohammed Afroz Hassanfatta?5, a criminal case progresses through three distinct stages: the first occurs when process is issued under Section 204, CrPC; the second takes place under Section 239, CrPC prior to the framing of charges; and the third follows the recording of all evidence presented by both the prosecution and the defence. Therefore, according to the Supreme Court, at the initial stage of summoning the accused, the Magistrate is not required to assess the strengths or weaknesses of the case or determine whether the evidence gathered is sufficient to secure a conviction. In JM Laboratories v. State of Andhra Pradesh?6, the Supreme Court set aside the summoning order of the Magistrate since it was bereft of any application of mind whatsoever. The Supreme Court went on to hold that the orders taking cognizance need not contain detailed reasons but the Magistrate has to apply his/her mind and formulate an opinion if a prima facie 4 (2012) 5 SCC 424. 5 (2019) 20 SCC 539. 6 2025 SCC OnLine SC 208. case has been made out against accused. The reason behind this is that a person cannot be dragged into court, merely because a complaint is lodged against him/her. Thus, in a sense, the stage of the Magistrate applying his/her mind acts as a safety net against unscrupulous complaints.

It is also well settled now that in case of cognizance taken pursuant a police report, the Magistrate has the benefit of the chargesheet, statement of witnesses examined by the police etc. The Magistrate may well ignore the conclusion arrived at by the investigating officer and can apply his mind independently to the case and the investigation undertaken and then take cognizance. The Supreme Court in Sharif Ahmed v. State of Uttar Pradesh?7 has opined that at this stage, a Magistrate may even call upon the investigating officer to clarify and give better particulars or even record statements in terms of Section 202, CrPC.

Two Verdicts Solidify the Law: With regard to the orders in question, in Pramila Devi v. State of Jharkhand?8, the Supreme Court observed, after noting several precedents, that the summoning order passed by the Magistrate cannot be faulted on the ground that it was not a reasoned order. It further held that the Magistrate at this stage cannot go into the veracity of the material before him, since the same has to be tested at the time of trial.

In Anurag Bhatnagar (supra), the Supreme Court laid down two significant principles of law: firstly, the Court reaffirmed the procedural requirement for an informant seeking to report the commission of a cognizable offence. The informant must first approach the officer-in-charge of the concerned police station. If no action is taken, the next recourse lies with the Superintendent of Police. Only upon failure of both these remedies can the informant invoke the jurisdiction of the Magistrate under Section 156(3), CrPC; secondly and pertinently, the Court reinforced an often-overlooked but crucial aspect of judicial application of mind. It held that a mere recital in the order that the counsel was heard and the application along with the accompanying material was perused does not, by itself, establish that the Magistrate applied judicial mind to the matter. However, where the Magistrate has recorded satisfaction—based on a perusal of the complaint and the supporting documents—that a cognizable offence is disclosed, such satisfaction is a clear indicator of due application of mind. Pertinently, the Supreme Court clarified that once such satisfaction is recorded by the Magistrate, it is not open to be interfered with under the inherent jurisdiction of the High Court either under Article 226/227 of the Constitution or Section 482, CrPC (corresponding to Section 528, BNSS).

Variance of the required degree of ‘Application of Mind’: From several judicial pronouncements, it is clear that the degree of application of mind required at the pre-cognizance stage is not the same for a private complaint as it is for cognizance taken pursuant a police report. In the landmark decision of Afroz Mohammed Hasanfatta (supra), the order taking cognisance read as under: “I take in consideration charge sheet/complaint for the offence of Section 420, 465, 467, 468 IPC etc. Summons to be issued against the accused.”

In this background, the Supreme Court held that the standard to be adopted for summoning the accused under Section 204, CrPC was not the same as at the time of framing the charge under Section 246, CrPC, where the expression used is “there is ground for presuming that the accused has committed an offence…” The Supreme Court thereafter laid down that the fact that the police had filed chargesheet, along with materials, after investigation of the case, may be considered sufficient ground for proceeding for issuance of summons. Thus, in that case, for the reason that cognizance was taken after considering the chargesheet filed by the police, the Supreme Court held therein that issuance of process did not suffer from any illegality.

On the other hand, in the case of private complaints, Sections 200, 202 and 203 of the CrPC may be of referred to for clarity (corresponding to Sections 223, 225 and 226 of BNSS, 2023). Even as per Section 202, the degree of application of mind required is only to consider whether there is “sufficient ground for proceeding”, and if not, as per Section 203, the complaint may be dismissed and it is here that the Magistrate is bound to record his reasons briefly. Recently, the Supreme Court in Delhi Race Club (1940) Ltd. v. State of U.P.?9, has observed that while dealing with a private complaint, the Magistrate is legally enjoined to meticulously examine the contents of the complaint and that he/she must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case originates from an FIR, it is the responsibility of the police to thoroughly determine whether the allegations made by the complainant genuinely constitute specific offences. The Supreme Court also noted that the Magistrate is expected to be more careful when he is actually taking cognizance upon a private complaint.

Additionally, it has been held by the Supreme Court in Pepsi Foods Ltd. v. Special Judicial Magistrate?10 held that the Magistrate has to carefully scrutinise the evidence, and that he/she may even put questions to the complainant and then examine if any offence is prima facie made out against the accused. In Sunil Bharti Mittal v. CBI?11, while setting aside the order taking cognizance, the Supreme Court held that the Magistrate is empowered to issue process against any person, even though he/she has not been chargesheeted, but against whom the police report reflects sufficient material showing his/her involvement. The Supreme Court then opined that, while it is impermissible to consider any material other than what has been collected by the investigating officer, under a complaint case under Section 204, CrPC a wide discretion is granted to the Magistrate.

In Mehmood Ul Rehman v. Khazir Mohammad Tunda?12, the Supreme Court distinguished between taking cognizance under Sections 190(1)(a) and 190(1)(b), CrPC. While Section 190(1)(b) allows the Magistrate to act on a police report, Section 190(1)(a) relies solely on the contents of a private complaint. The Supreme Court here opined that the Magistrate, in the case of the former, has the advantage of a police report. Thus, the Court ruled that if a private complaint does not, on its face, disclose the commission of an offence, the Magistrate cannot take cognizance. In such cases, the complaint must be rejected outright. The Apex Court also noted therein that while the reasons need to be stated briefly, no formal order or a speaking order is required to be passed at that stage. However, it was also noted that the Magistrate is not to act as a post office and take cognizance of every complaint filed before him as a matter of course. It was later held in Pradeep S. Wodeyar v. State of Karnataka?13, that In Mehmood Ul Rehman v. Khazir Mohammad Tunda?12, the Supreme Court distinguished between taking cognizance under Sections 190(1)(a) and 190(1)(b), CrPC. While Section 190(1)(b) allows the Magistrate to act on a police report, Section 190(1)(a) relies solely on the contents of a private complaint. The Supreme Court here opined that the Magistrate, in the case of the former, has the advantage of a police report. Thus, the Court ruled that if a private complaint does not, on its face, disclose the commission of an offence, the Magistrate cannot take cognizance. In such cases, the complaint must be rejected outright. The Apex Court also noted therein that while the reasons need to be stated briefly, no formal order or a speaking order is required to be passed at that stage. However, it was also noted that the Magistrate is not to act as a post office and take cognizance of every complaint filed before him as a matter of course. It was later held in Pradeep S. Wodeyar v. State of Karnataka?13, that in cases of a private complaint, a fully reasoned order taking cognizance may be necessary to reflect application of mind.

BNSS and the Paradigm Shift in Private Complaints: With regard to private complaints, there is a shift in the procedural landscape with the enactment of the BNSS, 2023. Earlier, under Section 200, CrPC cognizance could be taken by the Magistrates before issuing process to the accused. However, under the BNSS, there is a paradigm shift owing to Section 223, BNSS as under: Section 200, CrPC Section 223, BNSS “A Magistrate taking cognizance…” “A Magistrate having jurisdiction while taking cognizance…” “A Magistrate taking cognizance…” “A Magistrate having jurisdiction while taking cognizance…” - “Provided that no cognizance of an offence shall be taken by the Magistrate without  giving  the  accused  an opportunity of being heard”

From the above, firstly, it is apparent that under the former Section 200, CrPC in cases involving private complaints, the accused had no role until the Magistrate issued process, such as a summon or warrant. Initially, the Magistrate would examine the complainant and any witnesses to determine if there was enough evidence to proceed. Only if a prima facie case was made out, the Magistrate would issue process. Given that such orders of issuing process were challenged very often, the legislature in its wisdom, in the BNSS, has consciously made it clear that criminal law cannot be set into motion routinely, for the asking, and that the accused ought to be given a hearing before cognizance is taken. In other words, under the BNSS, after examining the complainant and any witnesses, notice is issued to the accused and he is given a hearing, post which cognizance may or may not be taken by the Magistrate.

Secondly, only a Magistrate having jurisdiction can take cognizance and the phrase “while taking cognizance” would undoubtedly suggest that this pre-cognizance stage continues till the accused is heard and the Magistrate applies his/her mind. Seen in this manner, from examination of the complainant, to notice under the proviso to Section 223, to hearing the accused and cognizance finally form part of “while taking cognizance”. The Karnataka?14, Allahabad?15, Chhattisgarh?16, Kerala?17, Delhi?18, Madras?19 and Calcutta?20 High Courts have unanimously taken a view that the proviso to Section 223(1), BNSS is mandatory. The Calcutta High Court in Kaberi (supra) has also held that the role of the accused at this stage is extremely limited, only to issues such jurisdiction, limitation, sanction and the like. He cannot produce any document at this stage or put-forth his defence beyond the complaint because the pre-cognizance enquiry is offence-centric and not offender-centric. The Madras High Court in Seeman (supra) has held that at this stage the accused is not permitted to cross- examine the complainant and/or his witnesses. These judgments proceed on the footing that cognizance is not taken at the stage of examination of the complainant. Notably, in Jamuna Singh v. Bhadai Shah?21, the Supreme Court held that the examination of the complainant under Section 200, CrPC itself is an indicator that the Magistrate has taken cognizance of the offence. This is again re-iterated in Sarah Mathew v. Institute of Cardio Vascular Diseases?22. Thus, while referring the matter to a larger bench to resolve this anomaly, the Delhi High Court in Rita Bakshi v. Seema Bajaj?23, held as under:

“30. Therefore, in this Court's view, it prima facie appears that the view taken by the coordinate Bench of this Court in Brand Protectors India Pvt. Ltd. v. Anil Kumar (supra), as well as by the High Courts of Karnataka, Allahabad and Kerala - to the effect that notice to the accused under the first proviso to Section 223(1) of the BNSS is to be issued after recording the statement of the complainant and witnesses - proceeds on the premise that cognizance is not taken at the stage of recording such statements. This understanding, however, appears to be at variance with several judicial precedents of the Supreme Court, as discussed hereinabove, which indicate that cognizance is said to be have been taken when the Magistrate applies his mind to proceed under Section 200 CrPC, and that the examination of the complainant is a step subsequent to such taking of cognizance.

31. At the same time, it is also necessary to appreciate that the interpretation adopted in the aforesaid decisions, by the Co-ordinate Bench and other High Courts, may have been influenced by the change in statutory language brought about by the enactment of the BNSS. While Section 200(1) CrPC employed the expression “a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant…”, Section 223(1) of the BNSS now provides that “a Magistrate having jurisdiction, while taking cognizance of an offence on complaint, shall examine upon oath the complainant…”. It thus also appears to this Court that the introduction of the word “while” in the latter provision has led to an interpretation that the act of examination of the complainant on oath.

34. Accordingly, 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, on following questions of law: 

(i) What is the stage at which a Magistrate can be said to have taken "cognizance" of an offence, in the context of a private complaint, under the provisions of BNSS, and whether the expression "while taking cognizance" as employed in Section 223(1) of the BNSS implies that the examination of the complainant and witnesses on oath is a step prior to taking of cognizance of offence? 

(ii) At what stage is the Magistrate required to issue notice to the accused in compliance with the first proviso to Section 223(1) of the BNSS - whether (a) upon perusal of the complaint but prior to recording of the statement of the complainant and witnesses, if any, or (b) after recording such statements but before a formal decision on taking cognizance?”

In Kushal Kumar Agarwal v. ED?24, the Supreme Court set aside the order taking cognizance since there was non-compliance of the proviso to sub section (1) of Section 223, BNSS. However, the Apex Court did not express any further opinion in this regard.

Thirdly, I would submit that, notwithstanding the above, after the hearing as envisioned under the proviso to sub section (1) of Section 223, BNSS, the degree of application of mind remains the same as was envisaged under the CrPC, if not more. Given the paradigm shift under the BNSS, according to me, it is only after the examination of the complainant and hearing the accused that cognizance can be taken. This is further because under Section 225, BNSS, the Magistrate can postpone the issuance of process and direct inquiry/investigation if he thinks fit. However, if any complaint does not disclose any sufficient ground for proceeding, either because it is malicious or otherwise, after examining the complainant, the Magistrate always has the power to dismiss the complaint at the threshold under Section 226, BNSS by recording reasons. This again has to reflect application of mind. Per contra, if the Magistrate decides to proceed further after examining the complainant, he has to issue notice to the accused for the pre-cognizance hearing and then record reasons for taking/not taking cognizance. This as per Pradeep S. Wodeyar (supra) would require further reasoning to infer ‘application of mind’. Additionally, the Magistrate also cannot issue notice under Section 223, BNSS to the accused after receiving a complaint straightaway as per the High Court of Karnataka in Basanagouda R. Patil (supra).

Conclusion: In a matter before the Karnataka High Court?25, the Magistrate had initially passed a brief order—similar to the one under consideration—which was quashed?26 and remanded for reconsideration. Upon remand, the Magistrate issued a detailed, reasoned order. When this revised order was challenged, the High Court, relying on the principles laid down by the Supreme Court in Pramila Devi (supra), held that the cognizance order did not suffer from non-application of mind. Interestingly, as per the law laid down in Pramila Devi (supra), the initial order itself was sustainable. 

In another instance, the Magistrate had passed an order stating that he has perused the chargesheet and thereafter took cognizance. Following Arjun Anjaneya Reddy I (supra), the Karnataka High Court set aside?27 such an order for not bearing any reasons. However, pertinently, if that order read that the chargesheet has been perused, that it discloses a cognizable offence and thereafter if cognizance was taken, that would demonstrate application of mind as per Anurag Bhatnagar (supra).

Conclusion: In a matter before the Karnataka High Court?25, the Magistrate had initially passed a brief order—similar to the one under consideration—which was quashed?26 and remanded for reconsideration. Upon remand, the Magistrate issued a detailed, reasoned order. When this revised order was challenged, the High Court, relying on the principles laid down by the Supreme Court in Pramila Devi (supra), held that the cognizance order did not suffer from non-application of mind. Interestingly, as per the law laid down in Pramila Devi (supra), the initial order itself was sustainable. In another instance, the Magistrate had passed an order stating that he has perused the chargesheet and thereafter took cognizance. Following Arjun Anjaneya Reddy I (supra), the Karnataka High Court set aside?27 such an order for not bearing any reasons. However, pertinently, if that order read that the chargesheet has been perused, that it discloses a cognizable offence and thereafter if cognizance was taken, that would demonstrate application of mind as per Anurag Bhatnagar (supra).

Thus, from a coalesce of the judgments rendered by the Supreme Court recently, it is clear that the orders in question of a Magistrate, which briefly record the perusal of relevant materials and their prima facie satisfaction as to disclosure of a cognizable offence, are legally valid and within the bounds of judicial propriety. However, in cases arising out of a private complaint, following Pradeep S. Wodeyar (supra), some further reasoning may be necessary to infer ‘application of mind’, particularly with the shift in the procedural landscape with the enactment of the BNSS, 2023.

-N. Venkatesh Kamath is an Associate at Spectrum Legal, Bengaluru. He can be reached 

at venkatesh@spectrumlegal.in  

1 2025 INSC 895. 

2 (2000) 1 SCC 722. 

3 W.P. No. 15522/2024, High Court of Karnataka, judgment dated 07/02/2025. 

4 (2012) 5 SCC 424. 

5 (2019) 20 SCC 539. 

6 2025 SCC OnLine SC 208. 

7 2024 SCC OnLine SC 726. 

8 2025 SCC OnLine SC 886. 

9 (2024) 10 SCC 690. 

10 (1998) 5 SCC 749. 

11 (2015) 4 SCC 609. 

12 (2015) 12 SCC 420. 

13 (2021) 19 SCC 62. 

14 Basanagouda R. Patil v. Shivananda S. Patil, 2024 SCC OnLine Kar 96. 

15 Prateek Agarwal v. State of U.P., 2024 SCC OnLine All 8212. 

16 Sanjay Bandhe v. Ashwani Bandhe, 2024 SCC OnLine Chh 13745. 

17 Suby Antony v. Judicial 1st Class Magistrate III, 2025 SCC OnLine Ker 532.  

18 Neeti Sharma v. Saranjit Singh, 2025 SCC OnLine Del 2329. 

19 Seeman v. Varun Kumar, 2025 SCC OnLine Mad 11445 (“Seeman”). 

20 Kaberi Dey v. Sourav Bhattacharjee, 2025 SCC OnLine Cal 5928 (“Kaberi”). 

21 1963 SCC OnLine SC 263. 

22 (2014) 2 SCC 62. 

23 2026 SCC OnLine Del 1390. 

24 2025 SCC OnLine SC 1221; See also Parvinder Singh v. Enforcement Directorate, 2026 SCC OnLine SC 903 

for the application of Section 223, BNSS qua the PMLA Act. 

25 Arjun Anjaneya Reddy v. State of Karnataka, 2025 SCC OnLine Kar 4444 (Arjun Anjaneya Reddy II). 

26 Arjun Anjaneya Reddy v. State of Karnataka, 2024 SCC OnLine Kar 15156 (Arjun Anjaneya Reddy I). 

27 Sri Karuna Karan D. v. State of Karnataka & Anr., 2026:KHC:14168.