Failure to comply with procedural requirements in criminal proceedings invalidates cognizance taken by a Magistrate.

CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA ORAL ORDER (PER: HON'BLE MR. JUSTICE V. SRISHANANDA)

1. Heard learned counsel Sri Malik Pasha for Sri Liyaqat Fareed Ustad appearing for the petitioner and learned High Court Government Pleader Sri Veeranagouda Malipatil appearing for respondent No.1-State and learned counsel Sri Pradeep Kumar appearing for respondent No.2.

2. This petition is filed by accused under Section

528 of BNSS with the following prayer:

“Therefore, it is most humbly prayed that, the Hon’ble Court may kindly be pleased to quash the entire proceedings in Private complaint registration in PCR No.05/2025 for the offence punishable U/Sec. 115, 352, 351(2), 85, 76, 74, 49 of the Bharatiya Nyaya Sanhita ( BNS ) Act-2023 & Sec.3 & 4 of the Dowry Prohibition Act by the Respondent No.1 Jewaragi P.S., which is pending on the file of Senior Civil Judge & J.M.F.C. Jewaragi, in the interest of justice and equity.”

3. Facts in brief, which are utmost necessary for disposal of the present petition are as under:

3.1 A private complaint came to be lodged under Section 223 of BNS S alleging the commission of the offences punishable under Sections 115 , 351(2), 352, 85, 76, 74, 49 of BNS , 2023, and Sections 3 and 4 of the Dowry Prohibition Act , 1951.

3.2 Learned trial Magistrate on receipt of the complaint from the complainant, passed the order as under:

“Complainant present. Sri K.E.B. Advocate for complainant presented complaint U/s. 223 & BNS S Act Punishable U/s. 115, 352, 351(2), 85, 76, 74, 49 of BNS & U/s. 3, 4 of Dowry Prohibition Act , 1961. Perused the complaint & document. As per provision of Sec.223, of BNS S before taking cognizance it is necessary to issue notice to accused persons. Issue Court Notice to A-1 to 6 office to register case as PCR.”

3.3 Since no sworn statement is recorded and straight away accused is summoned, validity of the order dated 08.05.2025 is called in question.

3.4 In order to appreciate the said aspect of the matter, it is just and necessary for this Court to cull out Section 223 of BNSS, which reads as under:

“223. Examination of complainant.-

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-examine them.”

4. On careful perusal of the material on record, it is crystal clear that the Trial Magistrate on receipt of the complaint, is required to record sworn statement i.e., examining the complainant on oath and the witnesses, if any present and thereafter, if he is convinced that there is a prima facie material whereby an offence has been committed, before taking cognizance, has to issue notice to the proposed accused.

5. Such a procedure has not been adopted by the Trial Magistrate in the case on hand. Therefore, the order dated 08.05.2025 needs to be set aside as it is against the prescribed procedure under Section 223 of BNSS, 2023. Accordingly, it is set aside and the matter is remitted to Trial Magistrate for disposal af