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M. NAGAPRASANNA
Basanagouda R. Patil (Yatnal) S/O Ramanagouda Patil – Appellant
Versus
Shivananda S. Patil S/O Sidramappa Patil – Respondent
ORDER :
M.NAGAPRASANNA, J.
The petitioner is before this Court calling in question an order dated 16-07-2024 passed by the 42nd Additional Chief Judicial Magistrate, Benagluru in P.C.R. No.9136/2024.
2. Heard the learned counsel Sri. Venkatesh P. Dalwai, appearing for the petitioner and the learned counsel Smt. Niveditha C. Shivanaikar, appearing for the respondent.
3. Sans details, facts in brief, germane are as follows:
The respondent - a member of the legislative assembly registers a complaint against the petitioner before the jurisdictional Magistrate invoking Section 223 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (‘BNSS’ for short). The crux of the complaint is, the petitioner allegedly made a defamatory speech at an election rally. The issue in the lis at this juncture does not concern the merit of the compliant or its defence by the parties to the present lis. What has driven the petitioner to this Court in the subject petition is, a unique circumstance of interpretation of Section 223 of the BNSS.
4. Learned counsel Sri Venkatesh P Dalwai appearing for the petitioner would submit that the petition itself is preferred owing to a procedural aberration by the learned Magistrat
The court established that under Section 223 of the BNSS, a Magistrate must examine the complainant on oath before issuing notice to the accused, ensuring procedural fairness.
The issuance of notice to the accused prior to the examination of the complainant on oath violates the procedural requirements established under Section 223 of BNSS, 2023.
The court clarified that under Section 223(1) of BNSS, a Magistrate must examine the complainant and witnesses before taking cognizance and issuing notice to the accused.
The issuance of notice by a Magistrate without recording complainant statements contravenes statutory procedures, rendering the notice invalid.
The requirement for the accused to be heard before taking cognizance of an offence is now mandatory under Section 223 of the B.N.S.S., marking a critical procedural safeguard.
Recording complainant's sworn statement under Section 223 BNSS does not amount to taking cognizance; it is pre-cognizance material collection requiring accused hearing.
Cognizance of offences – Notice is to be issued to accused only after examination of Complainant and present witnesses.
The court emphasized that under Section 223(1) of BNSS, a Magistrate must examine the complainant and provide the accused an opportunity to be heard before taking cognizance of an offence.
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