Notice To Accused Under S.223 BNSS Can Only Be Issued After Recording Complainant's Statement: Allahabad High Court - 2025-08-04

Allahabad High Court Clarifies Procedure Under S.223 BNSS: Complainant's Statement Must Precede Notice to Accused

Lucknow, UP - In a significant ruling clarifying the procedural mandates under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Allahabad High Court has held that a Magistrate cannot issue a notice to an accused for a pre-cognizance hearing without first recording the sworn statements of the complainant and their witnesses.

Justice Rajnish Kumar, while allowing an application filed by Rakesh Kumar Chaturvedi, quashed an order and a subsequent notice issued by the Additional Chief Judicial Magistrate-II, Lucknow, deeming it contrary to the procedure laid down in Section 223 of the BNSS.

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Case Background

The case, Rakesh Kumar Chaturvedi vs. State Of U.P. , arose from a complaint filed against the applicant. The Lucknow Magistrate, by an order dated February 10, 2025, issued a notice to Mr. Chaturvedi to appear for a hearing. The applicant challenged this notice before the High Court, arguing that it was issued prematurely and in violation of the statutory process.

The central legal question was: At what stage should a notice be issued to an accused for the "opportunity of being heard" as provided under the first proviso to Section 223 BNSS?

Arguments of the Parties

Applicant's Counsel (Sri Shantanu Sharma): The counsel for the applicant argued that the notice was illegal as it was issued before the Magistrate had examined the complainant and witnesses on oath, a mandatory prerequisite under Section 223 BNSS. He contended that the purpose of the pre-cognizance hearing for the accused is to assess the material already on record (i.e., the complainant's statements). Issuing a notice without such material renders the hearing an empty formality. The counsel cited similar rulings from the High Courts of Karnataka and Kerala to support his position.

State's Counsel (Sri Anurag Verma): The learned counsel for the State, while opposing the prayer in principle, could not dispute the legal position articulated by the applicant. He conceded that the matter could be remitted back to the Magistrate to proceed in accordance with the law, starting with the recording of statements.

Court's Analysis and Interpretation of Section 223 BNSS

Justice Rajnish Kumar meticulously analyzed the procedural framework established by the new law, particularly Sections 223 and 226 of the BNSS.

The Court outlined the correct procedural sequence as follows:

1. Filing of Complaint: A complaint is filed under Section 210 BNSS.

2. Examination of Complainant: The Magistrate must examine the complainant and any witnesses present on oath, and the substance of this examination must be recorded in writing (Section 223(1) BNSS).

3. Preliminary Assessment: The Magistrate considers these statements. If there is "no sufficient ground for proceeding," the complaint can be dismissed under Section 226 BNSS. This step prevents unnecessary harassment of the accused.

4. Notice for Pre-Cognizance Hearing: Only if the Magistrate finds sufficient ground to proceed based on the recorded statements should a notice be issued to the accused, granting them an opportunity of being heard as per the proviso to Section 223(1).

5. Taking Cognizance: After hearing the accused, the Magistrate decides whether to take cognizance of the offence.

The Court emphasized that this sequence ensures that the "opportunity of being heard" is meaningful. It allows the accused to respond to concrete material rather than facing a procedural formality devoid of substance.

The judgment quoted with approval a decision from the Karnataka High Court ( Basanagouda R. Patil Vs. Shivananda S. Patil ), which held:

"The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused... The notice that is sent to the accused...shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance."

Additionally, the Court noted a deficiency in the notice itself, which was a blank form with only the applicant's name filled in, and directed the lower court to ensure properly filled notices are issued in the future.

Final Decision and Implications

Finding that the Magistrate had issued the notice without first recording any statements, the High Court concluded that the prescribed procedure was not followed.

The Court allowed the application and quashed the impugned order and notice dated February 10, 2025. It directed the trial court to first record the statements of the complainant and witnesses and then proceed in accordance with the law and the principles laid down in the judgment.

This decision serves as a crucial guide for Magistrates across the state on the implementation of the new BNSS, reinforcing the principle of due process and ensuring that the newly introduced pre-cognizance hearing for the accused is conducted in a fair and meaningful manner.