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.

ORDER :

1. This petition takes exception to the impugned order at Annexure - A dated 26.03.2025 passed in PCR No.9136/2024 by XLII Additional Chief Judicial Magistrate, Bengaluru, whereby the learned Magistrate directed issuance of notice to the petitioner in terms of proviso to Section 223 (1) of BNSS , 2023.

2. Brief facts giving raise to the present petition are that the respondent - complainant filed memorandum of complaint dated 15.07.2024 under Section 223 of BNSS , 2023, against the petitioner - accused for alleged offence under Section 356 of BNSS , 2023. In the first instance, the Trial Court vide order dated 16.07.2024 took cognizance and issued summons to the petitioner, who approached this Court in Crl.P.No.7526/2024, which was allowed and disposed of vide order dated 27.09.2024 remitting the matter back to the learned Magistrate for reconsideration afresh in accordance with law.

3. In pursuance of the same, learned Magistrate once again passed an order dated 03.12.2024 and issued a notice in terms of proviso to Section 223 (1) of BNSS , 2023 to the petitioner - accused without enclosing copies of the complaint, documents, sworn statements etc., so as to enable the petitioner to have his say in the matter. Under these circumstances, alleging that there were violation of principles of natural justice, which are inbuilt into the proviso to Section 223 (1) of BNSS , 2023, the petitioner once again approached this Court in Crl.P.No.13872/2024, which was allowed and disposed of vide final order dated 07.03.2025 once again remitting the matter back to the learned Magistrate for reconsideration afresh in accordance with law.

4. Subsequently, the learned Magistrate proceeds to pass the impugned order dated 26.03.2025 directing issuance of notice to the petitioner as per proviso to Section 223 of BNSS , 2023. Aggrieved by the impugned order dated 26.03.2025 directing issuance of notice to the petitioner, he is before this Court by way of the present petition.

5. Learned counsel for the petitioner would reiterate the various contentions urged in the petition and refer to the material on record including the impugned order in order to point out that despite specific directions issued by this Court on two occasions directing the learned Magistrate to follow the procedure prescribed under Section 223 of BNSS , 2023, learned Magistrate has committed a grave and serious error in holding that the complainant had filed complaint by invoking Sections 500 , 501 and 502 of IPC, which is factually incorrect in as much as respondent - complainant had actually invoked Section 356 of BNSS , 2023 and not Sections 500 , 501 and 502 of IPC. It is submitted that the fact that the learned Magistrate has erroneously come to the conclusion that the respondent had invoked Sections 500 , 501 and 502 of IPC is apparent from the fact that the learned Magistrate proceeds to invoke proviso to Section 223 (1) of BNSS , 2023 by relying upon Section 531 of BNSS , 2023. It is therefore submitted that the impugned order which is contrary to the earlier directions issued by this Court as well as provisions contained in Section 223 of BNSS , 2023, deserves to be set aside and the matter be remitted back to the learned Magistrate for reconsideration afresh in accordance with law.

6. Per contra, learned counsel for the respondent would support the impugned order and submitted that there is no merit in the petition and the same is liable to be dismissed.

7. Before adverting to the rival contentions, it would be necessary to advert to the earlier orders passed by this Court between the parties.

8. The order dated 27.09.2024 passed in Crl.P.No.7526/2024 is extracted as und