Criminal Petition No. 13872 of 2024 · The High Court · 2024
Case Details
- 1 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR CRIMINAL PETITION NO. 13872 OF 2024 BETWEEN: SRI BASANAGOUDA R. PATIL (YATNAL), S/O RAMANAGOUDA B.PATIL YATNAL, AGED ABOUT 61 YEARS, OCC: MLA, VIJAYAPURA CONSTITUENCY R/AT OLD IB, STATION ROAD, VIJAYAPURA - 586 101, KARNATAKA, ALSO AT SINDAGI ROAD MAHAL AINAPUR, BIJAPUR, KARNATAKA - 586 104. (BY SRI VENKATESH P DALWAI, ADVOCATE) AND: SRI SHIVANANDA S. PATIL, S/O SIDRAMAPPA PATIL, AGE: 63 YEARS, OCC: MLA R/AT NERA JAMKHANDI CROSS, OPPOSITE TO PETROL PUMP, JAMKHANDI ROAD, VIJAYAPURA - 586 101. …PETITIONER (BY SRI RAVI B. NAIK, SENIOR COUNSEL FOR SMT.VIJETHA R. NAIK, ADVOCATE) …RESPONDENT Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.PC (UNDER SECTION 528 BHARATIYA NAGARIK SURAKSHA SANHITA, 2023) PRAYING TO SET ASIDE THE ORDER DATED 03.12.2024 PASSED BY XLII ADDITIONAL CHIEF JUDICIAL MAGISTRATE, PCR NO.9136/2024 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 356(2) OF BNS, 2023 PRODUCED AT ANNEXURE-A. BENGALURU CITY IN - 2 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL ORDER This petition is filed by the petitioner, who is arrayed as an accused in PCR No.9136/24 filed by the respondent - complainant for the offence punishable under section 356(2) of the Bharatiya Nyaya Sanhita, 2023. 2. It is the case of the petitioner that respondent - complainant, who is a Member of Legislative Assembly lodged a complaint with the jurisdictional Magistrate against the petitioner for having made defamatory speech at an election rally. The petitioner questioned the issuance of summons to him on the ground that the procedure as contemplated under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS, 2023' for short) was not strictly followed.
Legal Reasoning
3. I have heard learned counsel - Sri Venkatesh P Dalwai for the petitioner as well as learned Senior Counsel - 3 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 - Sri Ravi B. Naik representing learned counsel - Smt. Vijetha R. Naik for the respondent. 4. It is contention of Sri Venkatesh P. Dalwai, learned counsel for the petitioner that this Court while allowing the earlier petition filed by the present petitioner in Crl.P No.7526/2024, quashed the order dated 16th July 2024 passed by the learned Magistrate in PCR No.9136/2024 and remitted matter the back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order, by fixing the time limit. 5. It is further contention of learned counsel that despite a specific order passed by this Court to comply with the provisions of Section 223 of BNSS, 2023, copies of the complaint, sworn statement and other relevant materials were not served on the petitioner. It is also contended that on perusal of Annexure-D, it is seen that the notice issued to the petitioner on the complaint filed by - 4 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 himself and thus, there is a flaw and error committed in the notice as the complainant and the accused shown in the notice are one and the same and the said notice is signed by the learned Presiding Officer. Therefore, he contends that the provisions of Section 223, BNSS though ordered to be strictly followed, has not been complied diligently and on the contrary, notice is issued which depicts that the complaint is filed by the petitioner and the same is issued to the petitioner himself as an accused in the said case, which itself clearly depicts that there is absolute non-application of mind. Hence, the order impugned is illegal and requires to be quashed. 6. Per contra, learned senior counsel - Sri Ravi B Naik on behalf of Smt. Vijetha R. Naik representing the respondent contends that private complaint has been filed by the respondent/complainant - Sri Shivananda S. Patil in PCR No.9136/2024 as per Annexure-B and the learned Magistrate issued notice to the petitioner/accused - Sri Basanagoud R. Patil Yatnal vide Annexure-D. However, - 5 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 the name of the complainant has been wrongly mentioned as Sri Basanagoud R. Patil Yatnal in lieu of Sri Shivananda S. Patil in the notice - Annexure-D and therefore, the complainant and the accused shown in the notice are one and the same, which is purely a typographical error by inadvertence. Therefore, on that ground, the impugned order directing issuance of notice to the accused, cannot be quashed for non-compliance of provisions of Section- 223 of BNSS, 2023 as all other requirements are duly followed. Therefore, he seeks to dismiss the petition. 7. I have given my thoughtful consideration to the arguments advanced by learned counsels for the parties. 8. It is not in dispute that this is the 2nd round of litigation. In an earlier petition filed by the present petitioner in Crl.P 7526/24, this Court allowed the criminal petition, quashed the impugned order dated 16.7.2024 in PCR No.9136/2024, remitted the matter back to the learned Magistrate to redo the exercise afresh from the stage of entertainment of the complaint, keeping in mind - 6 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 the observations made by the Court in the said order. This Court at paragraphs 10 and 11 of the order has laid down the procedure to be followed as under: "10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter. 11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is - 7 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 sent to the accused in terms of proviso to sub- section (1) of Section 223 of the BNSS 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. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023." 9. The issue that is before this Court, at this juncture, is not on the merits of the matter. After the matter was remanded, the learned Magistrate ought to have kept in mind the directions issued by this Court while complying with the requirements of Section 223 of BNSS, 2023 strictly. On perusal of the impugned order, it is seen that the complainant is examined as CW.1 and two other witnesses by name Mohammed Isaq and Sri Shanthakumar are examined as CW.2 and CW.3 under Section 223 of BNSS,2023 and before taking cognizance, trial Court issued notice to the accused. But, on careful perusal of the notice issued to the accused vide Annexure- D, it is seen that there is a flaw and error committed in the - 8 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 notice as the complainant and the accused shown in the notice are one and the same and the said notice is signed by the Presiding Officer. It is also seen that no materials are placed before the Court to show as to whether copies of the complaint, sworn statement, statements of witnesses of CW.2 and CW.3 have been served or furnished to the petitioner - accused. Therefore, there is a clear non-application of mind while issuing notice to the accused, and violation of the prescribed procedure. 10. Under the circumstances, this is a fit case to be allowed for having not followed the procedure and the guidelines as contemplated under Section-223 of BNSS, 2023 and also the directions issued by this Court in Writ Petition No.7526/2024 dated 27th September 2024 at paragraph Nos.10 and 11 stated hereinabove. Accordingly, I pass the following
Decision
O R D E R i) The petition is allowed. - 9 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 ii) The impugned order dated 3.12.2024 passed by the XLII Addl. Chief Judicial Magistrate, Bengaluru city, in PCR No.9136/2024 insofar as issuance of notice to the petitioner - accused for the offence punishable under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023 vide Annexure-'A', is hereby set aside. iii) The matter is remitted back to the learned Magistrate to reconsider the matter afresh from the stage of issuance of notice to the petitioner - accused by following the procedure contemplated under Section 223 of BNSS, 2023 so also the directions issued by this Court in Criminal Petition No.7526/2024 dated 27th September 2024, strictly in accordance with law. iv) It is needless to mention that the learned Magistrate shall apply his mind while issuing the notice to the petitioner - accused, in accordance to Section 223 of BNSS. 2023. - 10 - NC: 2025:KHC:9820 CRL.P No. 13872 of 2024 v) It is made clear that this Court has not expressed any opinion on the merits of the matter. Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE GSS