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2025 Supreme(Online)(Ker) 23361

IN THE HIGH COURT OF KERALA AT ERNAKULAM
SUBY ANTONY – Appellant
Versus
R1(*DELETED) – Respondent


Judgement Key Points

Based on the provided legal document, the key legal principles and procedural requirements are as follows:

  1. Examination of Complainant and Witnesses Before Issuance of Notice: The court emphasized that under the relevant legal provisions, a Magistrate must examine the complainant and any witnesses on oath prior to issuing notice to the accused. This examination must be recorded and conducted before the Magistrate takes cognizance of the offence (!) .

  2. Stage of Taking Cognizance: Cognizance is the point at which the Magistrate becomes aware of the offence and is a prerequisite for initiating proceedings. It does not require formal action but occurs when the Magistrate applies his mind to the suspected offence (!) (!) .

  3. Procedure for Filing a Complaint: Upon receiving a complaint, the Magistrate is required to examine the complainant on oath and examine any witnesses present. Only after this examination should the Magistrate proceed to take cognizance and issue process to the accused (!) (!) .

  4. Mandatory Opportunity for the Accused: While examining the complaint and witnesses is necessary before taking cognizance, the accused must be given an opportunity to be heard after the Magistrate has examined the complainant and witnesses and before taking cognizance, as mandated by the relevant legal provisions (!) (!) .

  5. Timing of Notice to the Accused: The court clarified that notice to the accused should be issued only after the Magistrate has examined the complainant and witnesses on oath and has decided to take cognizance. Issuing notice before such examination contravenes the procedural requirement (!) (!) .

  6. Discretion of the Magistrate: The Magistrate has the discretion to decide whether to issue process after examining the complainant and witnesses. The Magistrate may also postpone issuing process or direct investigation, but this discretion must be exercised judiciously and in accordance with the procedural rules (!) (!) .

  7. Conclusion and Directions: The court allowed the petition, quashed the earlier order, and directed that the Magistrate must examine the complainant and witnesses on oath before proceeding to take cognizance. The accused shall be given an opportunity of hearing if the Magistrate decides to proceed after such examination (!) (!) .

In summary, the procedural requirement is that the Magistrate must first examine the complainant and witnesses under oath before issuing notice to the accused and taking cognizance of the offence. The accused's right to be heard is to be ensured after this examination and prior to the Magistrate's decision to proceed further.


ORDER

The introduction of three new criminal laws; the Bharatiya Nyaya Sanhita (BNS for short), Bharatiya Nagarik Suraksha Sanhita ( BNSS for short) and Bharatiya Sakshya Adhiniyam (BSA for short), has given rise to many interesting and intriguing legal issues. One such conundrum, coming up for consideration in this case, is whether Section 223 (1) of the envisages issuance of notice to the accused named in the complaint before taking cognisance of the offence.

2. Adv.Shaju Francis appearing for the petitioner submitted that the court below grossly erred in issuing notice to the accused in the complaint filed by the petitioner, even before examining the petitioner and his witnesses on oath. It is the submission of the learned counsel that the illegality is perpetuated by the learned Magistrate issuing notice to the accused, in spite of the oral objection raised initially and the written objection filed thereafter. According to the counsel, even on plain reading of Section 223 (1), it is apparent that the accused need be issued with notice only at the stage of taking cognisance. It is submitted that the legal position as to when notice under (1) is to be issued, laid down by the Hi

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