The failure to examine the complainant on oath renders the issuance of notice to the proposed accused invalid, with the presence at the event being characterized as part of official duties.

JUDGMENT:

CHANDRA SHEKHAR JHA, J.

Heard Mr. P.K. Shahi, learned Advocate General appearing for the petitioner and Mr. Bhanu Pratap Singh, learned A.P.P. for the State duly assisted by Mr. Akash Shankar, learned counsel for the respondent/opposite party No. 2.

2. The present quashing petition preferred under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short, the “B.N.S.S.”) by the petitioner for quashing the entire complaint case including order dated 25.03.2025 passed in Complaint Case No. 321(C)/2025 and consequential notice issued against petitioner as ‘proposed accused’, pending in the court of Sri Mayank Kumar Pandey, learned Judicial Magistrate - 1^st Class, Begusarai.

3. The brief case of the prosecution as it appears from the complaint petition, as mentioned aforesaid, filed before the court of learned C.J.M., Begusrai, that on 20.03.2025, while the complainant was watching a broadcast on Nav Bharat TV Channel at about 1:45 P.M., You Tube Channel and other social media, he noticed that the petitioner while inaugurating the event of ‘World Cup Sepak Takra, during the singing of the ‘National Anthem’ found talking with a person standing next to him, and he was continuously disturbing the said person and also found in the posture of ‘Pranaam’. It is alleged that the aforesaid conduct of the petitioner during the playing of the National Anthem is an offence punishable under section 3 of the Prevention of Insult to National Honour Act, 1971 and said act of the petitioner/proposed accused has deeply hurt the complainant.

4. The petitioner is presently holding the office of Chief Minister of Bihar.

5. It is submitted by Mr. P.K. Shahi, learned Advocate General, while arguing on behalf of the petitioner, that the present complaint was filed under political motivation to tarnish the image of the petitioner, who is the Chief Minister of the State of Bihar since 2005.

6. It is submitted by Mr. Shahi that the complaint was filed on 22.03.2025, when regular C.J.M. was on special leave and Sri Mayank Kumar Pandey, Judicial Magistrate, was the In-charge C.J.M. After receipt of the complaint, the learned Magistrate put up the case on 25.03.2025 for further proceedings after exercising power under section 212 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (in short, the ‘B.N.S.S.’). Being In-charge C.J.M., he recorded the requirement under section 218 of the B.N.S.S. is dispensed with at this stage, as prima-facie, on perusal of the complaint petition, the act of the proposed accused is distinct from his acting or purporting in discharge of his official duty, which is a perverse finding.

7. It is submitted that the learned Judicial Magistrate, in a hurried manner, exercised the power under Section 212(2) of the B.N.S.S. and transferred the case into his own file for further inquiry, trial and disposal.

8. It is submitted by Mr. Shahi that in the same hurried manner, the learned Magistrate without recording the statement of the complainant on S.A., ordered the issuance of notice to the petitioner as “proposed accused” as per provisions available under section 223 of the B.N.S.S.

9. Mr. Shahi, learned Advocate General, while arguing the matter, submitted further that the complainant is a private person and, therefore, the issuance of notice to the petitioner as “proposed accused” without examination of complainant upon oath and the witnesses present, if any, and the issuance of notice as “proposed accused” in view of section 223(1) of the B.N.S.S. is illegal on its face.

10. It is also pointed out by Mr. Shahi that the petitioner was present at the alleged event in the capacity of Chief Minister of Bihar to inaugurate the event, and, therefore, his presence at the event cannot be distinguished from his official function. Any such observation is perverse on its face, as if the petitioner was not the Chief Minister of State and had no occasion to present for inaugurating the World Cup event of “Sepak Takra”. It is submitted that hold