Recording complainant's sworn statement under Section 223 BNSS does not amount to taking cognizance; it is pre-cognizance material collection requiring accused hearing.

ORDER :

R. VIJAYAKUMAR, J.

The present petition has been filed by accused Nos.2 to 4 in Crl.M.P.No.2684 of 202 on the file of the Judicial Magistrate No.I, Karur seeking to quash the above said proceedings.

(A). Factual Background:

2. A perusal of the records reveal that the respondent herein had filed the above the said private complaint under Section 2(1)(h) r/w Section 223 of BNSS to take the complaint on file as against the present petitioners for the offence punishable under Section 356 of Bharatiya Nyaya Sanhita, 2023 (Section 500 of I.P.C.). This complaint was lodged on 31.07.2025. The sworn statement of the complainant was recorded by the Court and a notice was issued to the petitioners herein for their appearance on 09.01.2026 enclosing the copy of the complaint and the sworn statement. In order to quash the said complaint, the present petition has been filed by the respondents in the said complaint.

(B). Submissions of the learned counsels appearing on either side:

3. According to the learned counsel appearing for the petitioners, the petitioners are Governing Body Members of the India Literacy Mission and there is already exchange of legal notice between them and in such circumstances, the complaint does not reveal any offence much less the offence under Section 356 of BNS. He further submitted that as per Section 223 of BNSS, before taking cognizance of the offence, notice has to be issued to the proposed accused persons. However, in the present case, already sworn statement of the complainant has been recorded and therefore, it is clear that the learned Judge has already taken cognizance of the offence in violation of Section 223 of BNSS.

4. The learned counsel appearing for the petitioners had further submitted that the summon issued by the Judicial Magistrate would clearly indicate that it is not a pre-cognizance notice but it is a summon issued to the accused person. Therefore, according to him, the Magistrate has already taken cognizance without hearing the petitioners herein which is clearly in violation of Section 223 of BNSS. Hence, he seeks to quash the private complaint not only on the ground of violation of procedure adopted by the concerned Court but also on merits of the complaint.

5. The learned counsel appearing for the petitioners had relied upon the decision of the Delhi High Court reported in 2026 DHC 2282 (Dr Rita Bakshi Vs.Seema Bajaj and another) in support of his contention.

6. The learned Senior Counsel appearing for the respondent had submitted that taking of sworn statement by the Judicial Magistrate would not amount to taking cognizance of the offence. It is only a process of collecting material so as to issue notice to the proposed accused. Now that notice has been issued to the petitioners herein, it is always open to them to raise their objections with regard to taking of cognizance by the concerned Court. According to him, the present petition is premature in nature.

7. The learned Senior Counsel had further submitted that when the concerned Court has not taken cognizance at all, the question of quashing of the private complaint does not arise. He relied upon a decision of High Court of Karnataka at Bengaluru reported in 2024 SCC Online Kar 96 (Sri Basanagouda R.Patil (Yatnal) Vs. Sri Shivananda S.Patil); a decision of the High Court of Delhi reported in 2026 DHC 2282 (Dr Rita Bakshi Vs.Seema Bajaj and another) and the judgment of this Court in Crl.R.C.(MD).No.772 of 2025 (Seeman Vs. Varun Kumar) dated 27.11.2025 especially Paragraph No.22. Hence, he prayed for dismissal of the petition.

8. I have considered the submissions made on either side and perused the material records.

(C). Discussion:

9. For better appreciation Section 223 of Bharatiya Nagarik Suraksha Sanhita, (BNSS) 2023 is extracted 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,