Procedure Fixed, Prosecution Intact: Allahabad High Court Refuses to Quash FSSAI's Complaint Despite a Section 223 BNSS Lapse [Read Order]
The introduction of a pre-cognizance hearing under the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS") has prompted a steady stream of challenges to criminal complaints. A question of practical importance for regulators is whether a lapse in a
ffording that hearing entitles an accused to have the complaint itself quashed.
A recent order of the Allahabad High Court, in which we appeared as counsel for the Food Safety and Standards Authority of India ("FSSAI"), the informant, answers that question. While the Court set aside the orders passed without compliance with Section 223 BNSS, it declined to quash the complaint filed by the FSSAI, and the prosecution continues before the Magistrate.
Food Safety Law in India: A Brief Premise
Food regulation in India is governed by the Food Safety and Standards Act, 2006 ("FSS Act"), which replaced the Prevention of Food Adulteration Act, 1954 and allied enactments with a consolidated code, and established the FSSAI to lay down science-based standards for articles of food.
Graded offences. The Act distinguishes between sub-standard, misbranded and unsafe food. Unsafe food constitutes the gravest category and is punishable under Section 59.
Punishment proportionate to harm. Section 59 calibrates the sentence to the consequence, ranging from imprisonment and fine where no injury is caused, to imprisonment for life and a fine of not less than ten lakh rupees where the unsafe food results in death.
Prosecution by designated officers. Samples are drawn by Food Safety Officers and analysed by Food Analysts; prosecutions are instituted before criminal courts upon sanction by the Commissioner of Food Safety.
Primacy of the special statute. In Ram Nath v. State of U.P., 2024 INSC 138, the Supreme Court held that Section 59 of the FSS Act overrides Sections 272 and 273 of the Indian Penal Code, observing that the concept of unsafe food is wider than that of adulterated food and that Section 59 does not require proof of intention.
The Mandate of Section 223 BNSS
Section 223 BNSS corresponds to Section 200 of the Code of Criminal Procedure, 1973. Its first proviso introduces a safeguard that had no counterpart under the earlier Code:
"Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
Two features of the provision merit attention. First, the obligation is cast upon the Magistrate at the stage of taking cognizance; it does not bear upon the validity of the complaint. Secondly, under the second proviso, where a written complaint is made by a public servant acting in the discharge of official duties, such as a Food Safety Officer, the Magistrate need not examine the complainant and the witnesses.
Section 223 BNSS Before the Allahabad High Court: The Proceedings
The FSSAI had instituted a complaint under Section 223 BNSS read with Section 59 of the FSS Act against a food business operator. The Magistrate registered the complaint and issued process, and a bailable warrant was subsequently issued. The accused approached the High Court under Section 528 BNSS, seeking quashing of the entire proceeding including the complaint.
The Decision: Section 223 BNSS Non-Compliance Remedied, FSSAI Complaint Sustained
The Court held that, upon the coming into force of the BNSS, a hearing of the accused prior to cognizance is necessary, and that the bailable warrant and the other orders passed after registration of the complaint were contrary to Section 223 BNSS. Those orders were accordingly set aside.
Equally significant is the relief the Court declined to grant:
The complaint was not quashed. The prayer for quashing the entire proceeding was not accepted, and the application was only partly allowed.
The proceedings were remitted. The matter was sent back to the same Magistrate to pass a fresh order strictly in accordance with law.
No infirmity was attributed to the FSSAI. The defect identified lay in the procedure followed at the stage of the Magistrate's orders, not in the sampling, sanction or complaint of the regulator.
The outcome, therefore, secures the accused's statutory right of hearing while preserving the FSSAI's prosecution.
Key Takeaways
A right of hearing, not a ground for quashing. Section 223 BNSS entitles the accused to be heard before cognizance is taken. Non-compliance does not, by itself, vitiate a validly instituted complaint.
Limits of Section 528 BNSS. A procedural irregularity at the Magistrate's stage ordinarily results in remand rather than termination of a food safety prosecution.
Guidance for food authorities. Authorities may consider requesting the court to record compliance with the pre-cognizance hearing at the outset, thereby avoiding avoidable challenges and delay.
Consistency with the Supreme Court. In Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 INSC 760, and Parvinder Singh v. Directorate of Enforcement, 2026 INSC 519, the Supreme Court treated the pre-cognizance hearing as mandatory. In Kushal Kumar Agarwal, the remedy granted was likewise a hearing before the trial court, and not quashing of the complaint.
Concluding Observations: Section 223 BNSS as a Shield, Not a Sword
The pre-cognizance hearing is among the most consequential procedural reforms introduced by the BNSS. It ensures that no person is drawn into criminal proceedings on a complaint without first being heard, and courts have rightly insisted on its observance. Yet the safeguard is designed to operate as a shield for the accused, not as a sword to sever prosecutions that have been validly instituted.
The present order reflects that balance. By setting aside the orders passed without a hearing, the High Court vindicated the statutory right of the accused; by declining to quash the complaint, it protected the public interest that the FSS Act is enacted to serve. Where a lapse lies with the court rather than the complainant, the remedy is to restore the correct procedure, not to extinguish the prosecution.
For statutory authorities, the message is reassuring: a procedurally defective order does not undo a complaint founded on proper sampling, analysis and sanction. For food business operators, the hearing under Section 223 BNSS offers a genuine opportunity to place their position on record, but it is an opportunity to be heard, not an assurance of discharge. As Magistrates across the State adapt to the new procedure, the scope and content of this hearing will continue to be refined, and it is a development that both regulators and industry would do well to follow closely.
Disclaimer: This article is for general information only and does not constitute legal advice. Readers should seek specific advice on their own facts.
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