CAV ORDER

The petitioner is before this Court calling in question an order dated 16-07-2024 passed by the 42nd Additional Chief Judicial Magistrate, Benagluru in P.C.R. No.9136/2024.

2. Heard the learned counsel Sri. Venkatesh P. Dalwai, appearing for the petitioner and the learned counsel Smt. Niveditha C. Shivanaikar, appearing for the respondent.

3. Sans details, facts in brief, germane are as follows:

The respondent - a member of the legislative assembly registers a complaint against the petitioner before the jurisdictional Magistrate invoking Section 223 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (‘BNSS’ for short). The crux of the complaint is, the petitioner allegedly made a defamatory speech at an election rally. The issue in the lis at this juncture does not concern the merit of the compliant or its defence by the parties to the present lis. What has driven the petitioner to this Court in the subject petition is, a unique circumstance of interpretation of Section 223 of the BNSS.

4. Learned counsel Sri Venkatesh P Dalwai appearing for the petitioner would submit that the petition itself is preferred owing to a procedural aberration by the learned Magistrate. It is his contention that under Section 223 of the BNSS, the concerned Court has to issue notice to the accused prior to taking of cognizance. The Court has issued notice the moment complaint is filed by the respondent before the concerned Court. He would submit that this procedure is contrary to law.

5. Learned counsel appearing for the respondent would refute the submission by contending that the proviso to Section 223 of the BNSS mandates that prior to taking of cognizance the accused would be heard and it is no where said that notice should be issued only at a particular time either immediately after filing the complaint or recording of sworn statement, as the case would be. He would seek dismissal of the petition.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The registration of the private complaint for offences punishable under Section 356(2) of the BNSS is not in dispute. The fulcrum of the compliant was that the petitioner made a defamatory speech against the respondent at an election rally. The issue that is brought before the Court, at this juncture, is not on the merit of the matter. The complaint is filed by the respondent invoking Section 223 of the BNSS, which is Section 200 in the earlier regime - Cr.P.C. The moment complaint is registered, a notice is issued to the accused. Issuance of notice to the accused has driven the petitioner to this Court, in the subject petition, contending that it is contrary to the procedure to be adopted in law. Therefore, it becomes germane to notice certain provisions of the BNS 2023. Filing of the private complaint is dealt with under Section 223 of the BNSS, which was Section 200 of Cr.P.C., it reads as follows:

“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 or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212:

Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-exami