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2025 Supreme(Online)(All) 1616
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Rajnish Kumar, J
Rakesh Kumar Chaturvedi – Appellant
Versus
State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. – Respondent
APPLICATION U/S 528 BNSS No. - 862 of 2025
For the Appellants/Petitioners: Shantanu Sharma, Anshuman Sharma, Athar Ali
For the Respondents: G.A.
The Magistrate must record statements of the complainant and witnesses before issuing notice to the accused, ensuring due process under Section 223 BNSS.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 223 - Procedure for taking cognizance of offences - The Magistrate must examine the complainant and witnesses before issuing notice to the accused; failure to do so renders the notice unsustainable. (Paras 6, 10, 11, 12)
(B) Judicial procedure - Due process requires that the accused must be afforded an opportunity to be heard only after the necessary statements are recorded, ensuring no prejudice is caused. (Paras 8, 9)
Facts of the case:
The applicant challenged the notice issued without recording statements of the complainant and witnesses, asserting it was against the statutory provisions of BNSS.
Findings of Court:
The court quashed the impugned order due to procedural non-compliance with Section 223 BNSS, emphasizing the need for proper notice after recording necessary statements.
Issues: The main issue was whether the notice could be issued without recording the statements of the complainant and witnesses as mandated by Section 223 BNSS.
Ratio Decidendi: The court held that the Magistrate must follow the procedure outlined in Section 223 BNSS, which requires recording statements before taking cognizance and issuing notice to the accused, ensuring due process is followed.
Result: The application is allowed; the impugned order is quashed.
| Table of Content |
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| 1. counsel for the applicant argues against the notice issued. (Para 1 , 3) |
| 2. court discusses the necessity of following statutory procedures. (Para 2 , 5 , 6 , 10 , 11) |
| 3. court emphasizes due process in taking cognizance. (Para 8 , 12) |
| 4. final ruling quashes the impugned order. (Para 13 , 14) |
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 710.02.2025.
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 7223(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 ne
