Avinash v. Bobby and Others), under Section

1. Heard learned counsel for the applicants, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.

2. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as B.N.S.S.) has been preferred against order dated 10.04.20244, passed by learned Special Judge (D.A.A.) / Additional Sessions Judge, Court No.3, Farrukhabad in Complaint Case No. 397 of 2024 (Avinash Vs. Bobby and Others), under Section - 392, 323, 504, 506 I.P.C., Police Station - Mau Darwaja, District - Farrukbahad, whereby the complaint filed by the opposite party no.2 has been fixed for statement under Section - 223 BNSS and the objections filed by the applicants have been rejected.

3. Learned counsel for the applicants submitted that impugned order is against facts and law and thus liable to be set aside. It was submitted that as per provisions of Section - 223 (1) BNSS, learned Magistrate was required to issue a notice to the applicants and thus, the objections filed by the applicants must have been taken into consideration but the same have been rejected. Referring to facts of the matter, it was submitted that impugned order is against law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. In case of Prateek Agarwal Vs. State of U.P. 2024:AHC-LKO:78272, the co- ordinate Bench of this Court held as under :- "8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- "8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. 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, as the proviso mandates grant of an opportunity of being heard.

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 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.

12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. For hearing. Call on 13.08.2024." The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order."

7. In view of aforesaid, it is apparent that as per provisions of Section - 223 (1) BNSS, Magistrate while taking cognizance on a complaint shall examine upon oath the complainant and the witnesses present. The proviso of that provision requires that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. In the instant matter, no statement of complainant or of witness has been recorded so far. In view of these facts and circumstances, there was no requirement of issuing any notice to the accused persons at this stage and as a corollary of the same, the learned Magistrate was not not bound to consider the alleged objections filed by the applicants against the impugned complaint. In view of these facts and circumstances, it cannot be said that impugned order is suffering from patent illegality or perversity. There is nothing to show that there has been any abuse of process of Court or miscarriage of justice. The application under Section - 528 BNSS lacks merit and thus liable to be dismissed.

8. Accordingly, the application u/s 528 BNSS is hereby dismissed. Order Date :- 13.5.2025 S Rawat

1. Heard learned counsel for the applicants, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record.

2. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as B.N.S.S.) has been preferred against order dated 10.04.20244, passed by learned Special Judge (D.A.A.) / Additional Sessions Judge, Court No.3, Farrukhabad in Complaint Case No. 397 of 2024 (Avinash Vs. Bobby and Others), under Section - 392, 323, 504, 506 I.P.C., Police Station - Mau Darwaja, District - Farrukbahad, whereby the complaint filed by the opposite party no.2 has been fixed for statement under Section - 223 BNSS and the objections filed by the applicants have been rejected.

3. Learned counsel for the applicants submitted that impugned order is against facts and law and thus liable to be set aside. It was submitted that as per provisions of Section - 223 (1) BNSS, learned Magistrate was required to issue a notice to the applicants and thus, the objections filed by the applicants must have been taken into consideration but the same have been rejected. Referring to facts of the matter, it was submitted that impugned order is against law and thus, liable to be set aside.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned order.

5. I have considered the rival submissions and perused the record.

6. In case of Prateek Agarwal Vs. State of U.P. 2024:AHC-LKO:78272, the co- ordinate Bench of this Court held as under :- "8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- "8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. 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, as the proviso mandates grant of an opportunity of being heard.

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 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.

12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. For hearing. Call on 13.08.2024." The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order."

7. In view of aforesaid, it is apparent that as per provisions of Section - 223 (1) BNSS, Magistrate while taking cognizance on a complaint shall examine upon oath the complainant and the witnesses present. The proviso of that provision requires that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. In the instant matter, no statement of complainant or of witness has been recorded so far. In view of these facts and circumstances, there was no requirement of issuing any notice to the accused persons at this stage and as a corollary of the same, the learned Magistrate was not not bound to consider the alleged objections filed by the applicants against the impugned complaint. In view of these facts and circumstances, it cannot be said that impugned order is suffering from patent illegality or perversity. There is nothing to show that there has been any abuse of process of Court or miscarriage of justice. The application under Section - 528 BNSS lacks merit and thus liable to be dismissed.

8. Accordingly, the application u/s 528 BNSS is hereby dismissed. Order Date :- 13.5.2025 S Rawat