The Magistrate must provide an opportunity for the accused to be heard before taking cognizance under the Bharatiya Nagarik Suraksha Sanhita, 2023.

1. With the consent of learned counsel for the parties, heard finally.

2. The petitioners have preferred the present petition for quashing the order dated 07/12/2023 and order dated 12/07/2023 as well as the entire proceedings of Complaint Case No. (unregistered) before the Court of Judicial Magistrate First Class, Raipur.

3. The brief facts of the case is that the respondent Ramesh Chandra Gulati who claimed himself as a President of Employ Union, filed a complaint case against the present petitioners on 18/04/2023 under S.156 (3) of CrPC. with prayer to arrest the petitioners for offence under S.306 of IPC learned Magistrate had called the enquiry report from the concerned police station and after examine the concerned report and material available in the case diary, on 12/07/2023, rejected the application filed under S.156(3) of the CrPC by the respondent herein but started the proceedings under the Chap.15 of the CrPC for which no application was filed under S.200 of CrPC by the present respondent and taken the cognizance and recorded the statement of the complainant / respondent which is against the settled principal of law.

4. Being aggrieved by the order dated 12/07/2023, the present respondent / complainant had preferred a revision with the prayer that his application filed under S.156(3) has been dismissed, without opportunity of hearing and learned court has started the proceedings under Chap.15 of CrPC for which he did not moved any application but same was rejected vide order dated 05/02/2024.

5. After rejection of the above mentioned revision preferred by the present respondent, on 21/08/2024 preliminary evidence of the present respondent was recorded by the learned magistrate against the settled principle of law.

6. Learned counsel for the petitioners contended that Ukand Rao Wankhede @ Yogesh Wankhede has committed suicide on 20/09/2022. Merg inquiry was conducted by the Police under S.174 of CrPC and found that there is no abatement of suicide, therefore, Police has not registered an FIR against the petitioners. One Shri Ramesh Chandra Gulati has filed an application under S.156 (3) of CrPC before the Judicial Magistrate First Class, Raipur. Learned Magistrate sent a letter to the Police to investigate the matter and Police has investigated the matter as per Annexure - P / 5. As per suicidal note of deceased

7. In - charge Police Station Rakhi, District - Raipur has sent a report before the Magistrate in which it is mentioned that there is no cognizable offence made out against the petitioners, on that basis learned Judicial Magistrate First Class rejected the application filed by the complainant under S.156 (3) of CrPC on 12/07/2023. However, learned Magistrate has directed the complainant to produce preliminary evidence before the Court, meaning thereby treated as the complaint under S.200 of CrPC. At this juncture, no order has been passed by the Magistrate against the petitioners.

8. The Bharatiya Nagarik Suraksha Sanhita, 2023 came into force on 01/07/2024 and there is two provisions under S.223 (1) proviso that no cognizance offence wshall be taken by the Magistrate without giving the accused and opportunity of being heard. It is also pertinent to mention here that petitioner is a government servant Additional Director as provision contained in S.21 of the IPC [2 (28) of BNS] and S.223 (2) also provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties. Therefore, this petition is disposed of with a direction that the provision of BNSS has already been effective, therefore, Magistrate shall give an opportun