Back
IN THE HIGH COURT OF ALLAHABAD, LUCKNOW BENCH
RAJNISH KUMAR
Rakesh Kumar Chaturvedi – Appellant
Versus
State Of U.P. – Respondent
| Table of Content |
|---|
| 1. application under section 528 of bnss. (Para 1 , 2) |
| 2. arguments regarding improper notice issuance. (Para 3 , 4) |
| 3. procedure for taking cognizance under section 223. (Para 5 , 6 , 7) |
JUDGMENT :
Rajnish Kumar, J.
1. Heard Sri Shantanu Sharma, learned counsel for the applicant and Sri Anurag Verma, learned A.G.A. for the State.
2. The instant application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (here-in-after referred as BNSS ) has been moved with a prayer to quash/set aside the impugned order dated 10.02.2025 passed by learned Additional Chief Judicial Magistrate-II, Lucknow in Misc. Case No.807/2025 alongwith notice i.e. Annexure No.1.
3. Learned counsel for the applicant submits that the notice, which has been issued to the applicant by means of the impugned order dated 10.02.2025, is against the statutory provision made under Section 223 of the BNSS because before taking cognizance, the notices can be issued for affording the opportunity of hearing, but only after recording all the statements of the complainant and the witnesses, if required. He relies on a co-ordinate Bench decision dated 26.11.2024 passed in Application under Section 482
The issuance of notice by a Magistrate without recording complainant statements contravenes statutory procedures, rendering the notice invalid.
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.
Recording complainant's sworn statement under Section 223 BNSS does not amount to taking cognizance; it is pre-cognizance material collection requiring accused hearing.
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.
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 court established that a magistrate must provide an opportunity for the accused to be heard before taking cognizance of criminal complaints, ensuring adherence to procedural justice under Section....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
