High Court · 2025

1. Heard Sri Sushil Shukla, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. In view of the order which is being proposed to be passed today, notices are not being issued to O.P. No.2.

3. The case of the applicants is that they happen to be husband, father-in-law, mother-in-law and sister-in-law of O.P. No.2 and the marriage of applicant no.1 stood solemnized with O.P. No.2 on 14.12.2014. As per the complaint purported to be under Section 316(2) of BNSS and Section 6 of the Dowry Prohibition Act lodged on 14.02.2025, allegation is that there was criminal breach of trust relatable to items in the shape of dowry which was illegally retained. Post-recording of statements, an order came to be passed on 09.05.2025 by the Court of Addl. Chief Judicial Magistrate/Addl. Civil Judge (Sr. Div.) Court No.2, Rampur summoning the applicants under Section 316(2) BNSS and Section 3/4 of Dowry Prohibition Act in the proceedings in Complaint Case No.49 of 2025.

4. Questioning the summoning order, the present application has been filed.

5. Learned counsel for the applicants has sought to argue that the summoning order cannot be sustained for a single moment for more than one reason. Firstly with the enforcement of BNSS w.e.f. 01.07.2024, now in the complaint case, a specific procedure has been enunciated under Section 223 of the BNSS. Submission is that first proviso to Section 223 of BNSS provides that before taking cognizance, opportunity of hearing is to be accorded to the accused to put forward its stand. Argument is that in the present case, no such procedure as known to law, as per first proviso of Section 223 of BNSS has been complied with and straightaway, the applicant has been summoned. He seeks to rely upon the decision in Prateek Agarwal vs. State of U.P., Crl. Misc. Application u/s 482 No. 10390 of 2024 decided on 26.11.2024. Further submission is that even otherwise, the complaint itself was not maintainable, as previously also a complaint was preferred, which came to be rejected, thus the second complaint could not have been preferred. Submission is that the summoning order be set aside.

6. Sri Vikas Sharma, learned State Law Officer on the other hand could not dispute the fact that the complaint herein had been preferred on 14.02.2025, post-enforcement of BNSS on 01.07.2024. Thus the requirement under first proviso under Section 223 of BNSS is mandatory. He submits that the summoning order be set aside and matter be remitted back to the court below to pass a fresh order.

7. Section 223 of BNSS reads as under:- "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."

8. This Court in Prateek Agarwal (supra) in para 8 and 9 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."

9. In the present case in hand, it is apparent from summoning order dated 09.05.2025 passed by the court below that the applicant has not been put to notice at a pre-cognizance stage, which is a mandatory requirement as per first proviso to Section 223 of the BNSS. Further the law in this regard also stands crystalized in Prateek Agarwal (supra).

10. Accordingly, this Court has no option, but to set aside the summoning order. Resultantly, the application is disposed of.

11. The order dated 09.05.2025 passed in by the Court of Addl. Chief Judicial Magistrate/Addl. Civil Judge (Sr. Div.) Court No.2, Rampur summoning the applicants under Section 316(2) BNSS and Section 3/4 of Dowry Prohibition Act in the proceedings in Complaint Case No.49 of 2025, is set aside. The matter stands remitted back to the court below to proceed afresh as per the mandate of law.

12. For facilitation of early disposal, the certified copy of the order passed today, shall be submitted by the applicants before the court below by 30.05.2025. Order Date :- 23.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

1. Heard Sri Sushil Shukla, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer for the State.

2. In view of the order which is being proposed to be passed today, notices are not being issued to O.P. No.2.

3. The case of the applicants is that they happen to be husband, father-in-law, mother-in-law and sister-in-law of O.P. No.2 and the marriage of applicant no.1 stood solemnized with O.P. No.2 on 14.12.2014. As per the complaint purported to be under Section 316(2) of BNSS and Section 6 of the Dowry Prohibition Act lodged on 14.02.2025, allegation is that there was criminal breach of trust relatable to items in the shape of dowry which was illegally retained. Post-recording of statements, an order came to be passed on 09.05.2025 by the Court of Addl. Chief Judicial Magistrate/Addl. Civil Judge (Sr. Div.) Court No.2, Rampur summoning the applicants under Section 316(2) BNSS and Section 3/4 of Dowry Prohibition Act in the proceedings in Complaint Case No.49 of 2025.

4. Questioning the summoning order, the present application has been filed.

5. Learned counsel for the applicants has sought to argue that the summoning order cannot be sustained for a single moment for more than one reason. Firstly with the enforcement of BNSS w.e.f. 01.07.2024, now in the complaint case, a specific procedure has been enunciated under Section 223 of the BNSS. Submission is that first proviso to Section 223 of BNSS provides that before taking cognizance, opportunity of hearing is to be accorded to the accused to put forward its stand. Argument is that in the present case, no such procedure as known to law, as per first proviso of Section 223 of BNSS has been complied with and straightaway, the applicant has been summoned. He seeks to rely upon the decision in Prateek Agarwal vs. State of U.P., Crl. Misc. Application u/s 482 No. 10390 of 2024 decided on 26.11.2024. Further submission is that even otherwise, the complaint itself was not maintainable, as previously also a complaint was preferred, which came to be rejected, thus the second complaint could not have been preferred. Submission is that the summoning order be set aside.

6. Sri Vikas Sharma, learned State Law Officer on the other hand could not dispute the fact that the complaint herein had been preferred on 14.02.2025, post-enforcement of BNSS on 01.07.2024. Thus the requirement under first proviso under Section 223 of BNSS is mandatory. He submits that the summoning order be set aside and matter be remitted back to the court below to pass a fresh order.

7. Section 223 of BNSS reads as under:- "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."

8. This Court in Prateek Agarwal (supra) in para 8 and 9 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."

9. In the present case in hand, it is apparent from summoning order dated 09.05.2025 passed by the court below that the applicant has not been put to notice at a pre-cognizance stage, which is a mandatory requirement as per first proviso to Section 223 of the BNSS. Further the law in this regard also stands crystalized in Prateek Agarwal (supra).

10. Accordingly, this Court has no option, but to set aside the summoning order. Resultantly, the application is disposed of.

11. The order dated 09.05.2025 passed in by the Court of Addl. Chief Judicial Magistrate/Addl. Civil Judge (Sr. Div.) Court No.2, Rampur summoning the applicants under Section 316(2) BNSS and Section 3/4 of Dowry Prohibition Act in the proceedings in Complaint Case No.49 of 2025, is set aside. The matter stands remitted back to the court below to proceed afresh as per the mandate of law.

12. For facilitation of early disposal, the certified copy of the order passed today, shall be submitted by the applicants before the court below by 30.05.2025. Order Date :- 23.5.2025 N.S.Rathour (Vikas Budhwar, J) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad