The Madras High Court has sought the Union Government’s response to a petition challenging the first proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The proviso says a Magistrate cannot take cognisance of an offence without first giving the accused an opportunity of being heard.
A Bench of Chief Justice S.A. Dharmadhikari and Justice G. Arul Murugan admitted the plea. It also issued a notice to the Ministry of Law and Justice and the Ministry of Home Affairs.
Investigative journalist and Nakkheeran Publications owner Nakkheeran Gopal filed the petition. He argues that the proviso is redundant, delays proceedings, goes against timely justice, and is ultra vires the Constitution.
He has also asked the Court to settle the correct trial procedure for a criminal defamation complaint. In that context, he points to what he calls conflicts between Sections 210, 223, 225, and 227 of the BNSS.
Background of the Defamation Complaint
Gopal stated that, as part of his profession, he had published articles critical of alleged illegalities at the Isha Foundation run by Jaggi Vasudev.
According to him, after the publication of those articles, the Isha Foundation published a defamatory article against him.
He then filed a criminal defamation complaint before the Metropolitan Magistrate, Egmore.
Proceedings Before the Magistrate
Gopal submitted that the Magistrate conducted a pre-cognisance enquiry. He also said the Magistrate recorded his sworn statement to establish the ingredients of the offence of defamation under Section 356(1) of the Bharatiya Nyaya Sanhita (BNS).
He further submitted that the Magistrate insisted on issuing a summons to all the accused. The purpose, according to him, was to give them an opportunity of being heard under the first proviso to Section 223(1) of the BNSS.
That step prompted Gopal to move to the High Court and challenge the validity of the provision.
Challenge to Section 223(1) Proviso
Gopal argued that Section 223 of the BNSS is pari materia with Section 200 of the Code of Criminal Procedure. However, he said the first proviso is an additional insertion.
According to him, the requirement that all accused must be heard before cognisance makes timely justice difficult. He argued that, in practical terms, serving summons on all the accused can be very difficult.
The plea states that the earlier law gave the accused three opportunities of defence. These were dismissal of the complaint under Sections 202 and 203 of the CrPC, challenge to cognisance under Section 190 CrPC, and appeal after conviction under Section 255 CrPC.
Gopal contends that the BNSS now gives the accused two more opportunities. He refers to the proviso to Section 274 BNSS, which allows discharge, and the proviso to Section 223(1), which gives the accused a hearing before cognisance.
Plea Alleges Burden on Complainant
Gopal has further argued that the new proviso places a heavy burden on the complainant.
He submits that, where there are many accused, proceedings may continue endlessly. According to him, that would deny timely justice to the aggrieved person.
Alleged Contradictions Within BNSS
The plea also points to what it describes as inbuilt contradictions within the BNSS.
According to the petition, Section 210 allows the Magistrate to take cognisance straightaway. Section 227 allows the Magistrate to issue a summons if sufficient grounds exist.
It further states that, under Section 223, the Magistrate need not examine the complainant and witnesses if the complaint is in writing. At the same time, Section 225 requires the Magistrate to take evidence of witnesses to determine whether sufficient grounds exist.
Gopal argues that these contradictions place the Magistrate in a conundrum.
Relief Sought
On these grounds, the plea seeks a declaration that the first proviso to Section 223(1) of the BNSS is redundant and ultra vires the Constitution.
Case Title: Nakkheeran Gopal v. Union of India and Others
Case No.: W.P. No. 6087 of 2026
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