Kavita Singh v. Arvind and Ors) U

2. Heard Sri Hanuman Deen Verma, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State and Sri Chandra Shekhar Pandey (AOR No.1540/ 2017) holding brief of Sri Shiv Prakash Dwivedi, learned counsel for opposite party no.2. A joint statement has been made by learned counsels for the parties that they do not propose to file any supplementary affidavit and the application be decided on the basis of documents available on record.

3. With the consent of the parties the application has been decided at the fresh stage.

4. This is an application filed U/s 528 BNSS for quashing the entire proceeding of complaint case no. 217 of 2024 (Kavita Singh vs. Arvind and Ors) U/s 498, 323 IPC and 3/4 D.P. Act, P.S. Chunar, District Mirzapur as well as summoning order dated 14.05.2025 passed by Civil Judge (J.D.)/ FTC (Crime against Women), Mirzapur.

5. Learned Counsel for the applicant has submitted that proceedings U/s 156 (3) Cr.P.C. Cr.P.C. stood lodged by the opposite party no.2 on 02.07.2024 against the applicant under section 115, 352, 351, 85 BNSS read with section ¾ D.P. Act. On 14.05.2025 the court below proceeded to pass the order of summoning the applicant U/s 498A, 323 IPC read with Section ¾ of D.P. Act. Questioning the summoning order, the present application has been filed.

6. Learned counsel for the applicant has submitted that though on merits, the applicant has an iron caste case as none of the offences are made out against the applicant but according to him, the fundamental question which goes to the root of the matter is regarding non compliance of first proviso, of section 223 of the BNSS. According to which the accused is to be accorded opportunity of hearing and put to notice at pre- cognizance stage. He seeks to rely upon the decision of the Hon'ble Apex Court in the case of Prateek Agarwal Vs. State of U.P., passed in Application u/s 482 No. 10390 of 2024. The submission is that the summoning order i.e. 19.04.2025 passed in complaint case no. 217 of 2024 by Civil Judge (J.D.)/ FTC (Crime against Women), Mirzapur be set aside and the matter be remitted back to the court below to pass a fresh order. The relevant averment has been made in para-4 of the supplementary affidavit.

7. Learned AGA does not dispute the said fact. According to him, the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. For the reference Section 223 of the BNSS is being quoted hereinunder.- "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, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them: (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless - (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."

10. A perusal of the first proviso to Section 223 of BNSS would reveal that first proviso appended thereto mandates that before taking cognizance i.e. at pre-cognizance stage opportunity of hearing is to be accorded to the accused. Here in the present case, the court finds that the complaint had been lodged on 02.07.2024 and the BNSS came into effect from 01.07.2024, and the summoning is order dated 14.05.2025, and further the complaint was also lodged under BNSS 2023. Since the BNSS came into operation, thus the applicant accused was entitled to put to notice at pre-cognizance stage. In Prateek Agarwal (supra), the coordinate bench has observed 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.

13. For the aforesaid reasons the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. (iii) Matter is remitted 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. (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, I.A.No.2 of 2024 stands disposed."

11. Since the aforesaid exercise is completely lacking and the applicant has not been put to notice at pre-cognizance stage, thus this Court has no option but to entertain the present application while set aside the summoning order dated 14.05.2025. Accordingly the application is disposed of with the following terms: a. The summoning order dated 14.05.2025 passed in complaint case no. 217 of 2025 (Kavita Singh vs. Arvind and ors) passed by Civil Judge (J.D.)J/M FTC (Crime against Women), Mirzapur is set aside. b. The matter stands remitted back to the court below to pass a fresh order . c. For facilitation in speedy disposal, the parties shall place this order before the court below by 25.07.2025. Order Date :- 11.7.2025 C. MANI

2. Heard Sri Hanuman Deen Verma, learned counsel for the applicant as well as Sri Sudhir Kumar Chandraul, learned AGA for the State and Sri Chandra Shekhar Pandey (AOR No.1540/ 2017) holding brief of Sri Shiv Prakash Dwivedi, learned counsel for opposite party no.2. A joint statement has been made by learned counsels for the parties that they do not propose to file any supplementary affidavit and the application be decided on the basis of documents available on record.

3. With the consent of the parties the application has been decided at the fresh stage.

4. This is an application filed U/s 528 BNSS for quashing the entire proceeding of complaint case no. 217 of 2024 (Kavita Singh vs. Arvind and Ors) U/s 498, 323 IPC and 3/4 D.P. Act, P.S. Chunar, District Mirzapur as well as summoning order dated 14.05.2025 passed by Civil Judge (J.D.)/ FTC (Crime against Women), Mirzapur.

5. Learned Counsel for the applicant has submitted that proceedings U/s 156 (3) Cr.P.C. Cr.P.C. stood lodged by the opposite party no.2 on 02.07.2024 against the applicant under section 115, 352, 351, 85 BNSS read with section ¾ D.P. Act. On 14.05.2025 the court below proceeded to pass the order of summoning the applicant U/s 498A, 323 IPC read with Section ¾ of D.P. Act. Questioning the summoning order, the present application has been filed.

6. Learned counsel for the applicant has submitted that though on merits, the applicant has an iron caste case as none of the offences are made out against the applicant but according to him, the fundamental question which goes to the root of the matter is regarding non compliance of first proviso, of section 223 of the BNSS. According to which the accused is to be accorded opportunity of hearing and put to notice at pre- cognizance stage. He seeks to rely upon the decision of the Hon'ble Apex Court in the case of Prateek Agarwal Vs. State of U.P., passed in Application u/s 482 No. 10390 of 2024. The submission is that the summoning order i.e. 19.04.2025 passed in complaint case no. 217 of 2024 by Civil Judge (J.D.)/ FTC (Crime against Women), Mirzapur be set aside and the matter be remitted back to the court below to pass a fresh order. The relevant averment has been made in para-4 of the supplementary affidavit.

7. Learned AGA does not dispute the said fact. According to him, the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

8. I have heard the submissions so made across the bar and perused the record carefully.

9. For the reference Section 223 of the BNSS is being quoted hereinunder.- "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, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them: (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless - (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."

10. A perusal of the first proviso to Section 223 of BNSS would reveal that first proviso appended thereto mandates that before taking cognizance i.e. at pre-cognizance stage opportunity of hearing is to be accorded to the accused. Here in the present case, the court finds that the complaint had been lodged on 02.07.2024 and the BNSS came into effect from 01.07.2024, and the summoning is order dated 14.05.2025, and further the complaint was also lodged under BNSS 2023. Since the BNSS came into operation, thus the applicant accused was entitled to put to notice at pre-cognizance stage. In Prateek Agarwal (supra), the coordinate bench has observed 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.

13. For the aforesaid reasons the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. (iii) Matter is remitted 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. (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, I.A.No.2 of 2024 stands disposed."

11. Since the aforesaid exercise is completely lacking and the applicant has not been put to notice at pre-cognizance stage, thus this Court has no option but to entertain the present application while set aside the summoning order dated 14.05.2025. Accordingly the application is disposed of with the following terms: a. The summoning order dated 14.05.2025 passed in complaint case no. 217 of 2025 (Kavita Singh vs. Arvind and ors) passed by Civil Judge (J.D.)J/M FTC (Crime against Women), Mirzapur is set aside. b. The matter stands remitted back to the court below to pass a fresh order . c. For facilitation in speedy disposal, the parties shall place this order before the court below by 25.07.2025. Order Date :- 11.7.2025 C. MANI