The issuance of notice by a Magistrate without recording complainant statements contravenes statutory procedures, rendering the notice invalid.

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 Cr.P.C. No.10390 of 2024; Prateek Agarwal Vs. State of U.P. and Another , decision of the High Court of Karnataka passed in the case of Basanagouda R. Patil Vs. Shivananda S. Patil ; 2024 SCC Online Kar 96 and judgment rendered by the High Court of Kerala at Ernakulam in the case of Suby Antony S/o Late P.D. Antony Vs. Judicial First-Class Magistrate passed in Crl. MC 508 of 2025 on 22.01.2025. Thus, the submission of learned counsel for the applicant is that the impugned notice is not sustainable under law and liable to be quashed.

4. Learned A.G.A. for the State, though opposed the prayer but he could not contradict the legal position. He further submits that the impugned notice may be quashed and the matter may be remitted back, so that the learned Magistrate may proceed in accordance with law after recording the statements of the complainant and the witnesses and the respondent No.2 cannot be said to be prejudiced at this juncture because his statement has still not been recorded, to which, there is no objection by learned counsel for the applicant.

5. Having considered the submissions of learned counsel for the parties and on perusal of record, it is apparent that a complaint has been filed by the respondent No.2 and without recording any statement of the complainant or the witnesses, a notice has been issued to the applicant by means of impugned order dated 10.02.2025.

6. Section 223 BNSS provides that the Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate. The first proviso appended to the Section provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. The second proviso appended to the Section provides certain contingencies under which, the Magistrate need not examine the complainant and witnesses, if complaint is in writing. The relevant Section 223 (1) BNSS is extracted here-in-below:-

"223. Examination of complainant - (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:

Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a public servant acting