Khushiram v. Ashish Verma and others) under Sections

1. Mr. Mahendra Tripathi, Heard learned counsel for the appellants, learned A.G.A for the State, Ms. Shalini Singh, holding brief of Mr. Rakesh Pathak, learned counsel for the respondent no.2 as also perused the record.

2. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred to set aside the impugned summoning order dated 12.08.2025 passed by Special Judge (SC/ST Act)/Additional Session Judge, Agra as well as entire proceeding of Complaint Case No.116 of 2025 (Khushiram vs. Ashish Verma and others) under Sections 318 (4), 338, 336(3), 340(2), 352, 351 (2) BNS and Section 3(1) Da, 3(1) Dha, 3(2) 5 SC/ST Act, Police Station Tajganj, District Agra whereby the court below summoned the appellants under the aforementioned sections to face trial.

3. As per allegation, the appellants have taken money of Rs.1.5 lakh in cash and Rs.3.5 lakhs through cheque bearing no.802025 Canera Bank in lieu of providing job to the son of opposite party no.2.

4. Learned counsel for the appellants submits that appellants are innocent and have been falsely implicated. Neither appellants have committed maarpeet nor abused to the complainant. Appellant no.1 is a Government Teacher whereas the appellant no.2 is a businessman, who is running a jewelry shop. He further submits that the learned court below without complying the provisions of Section 223 (1) B.N.S.S. has summoned the appellants, which is illegal and not sustainable in the eye of law, therefore, the same is liable to be set aside. 2 CRLA No. 7668 of 2025

5. During arguments, learned counsel for the appellants has raised a legal question that under Section 223 B.N.S.S., a notice to the accused is mandatory. In support of his submission, learned counsel for the appellants has relied upon the judgement of Karnataka High Court in the case of Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil passed in Criminal Petition No.7526 of 2024.

6. Learned A.G.A. vehemently opposes the prayer made by learned counsel for the appellants, but does not dispute the intentions of the Section 223 of B.N.S.S. as well as the legal pronouncement of the High Court of Karnataka in the aforesaid case.

7. I have heard the submissions advanced by learned counsel for the parties and perused the material available on record.

8. Proviso to sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an accused, 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.

9. In the case of Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil, the Karnataka High Court has held as under (paragraphs 8, 9, 10 & 11): "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. 3 CRLA No. 7668 of 2025

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.

10. Considering the facts and circumstances of the case as well as law laid down in the case of Sri Basanagouda R. Patil (Supra), the instant criminal appeal is allowed. The impugned summoning 12.08.2025 passed by Special Judge (SC/ST Act)/Additional Session Judge, Agra is hereby set aside.

11. The matter is remitted back to the Court below to decide the matter afresh strictly in accordance with law as per mandate of Section 223 of the B.N.S.S., 2023 and to pass a reasoned order, preferably within a period of three month from the date of production of a certified copy of this order. September 12, 2025 Ajeet (Shekhar Kumar Yadav,J.) AJEET KUMAR PATEL High Court of Judicature at Allahabad

1. Mr. Mahendra Tripathi, Heard learned counsel for the appellants, learned A.G.A for the State, Ms. Shalini Singh, holding brief of Mr. Rakesh Pathak, learned counsel for the respondent no.2 as also perused the record.

2. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred to set aside the impugned summoning order dated 12.08.2025 passed by Special Judge (SC/ST Act)/Additional Session Judge, Agra as well as entire proceeding of Complaint Case No.116 of 2025 (Khushiram vs. Ashish Verma and others) under Sections 318 (4), 338, 336(3), 340(2), 352, 351 (2) BNS and Section 3(1) Da, 3(1) Dha, 3(2) 5 SC/ST Act, Police Station Tajganj, District Agra whereby the court below summoned the appellants under the aforementioned sections to face trial.

3. As per allegation, the appellants have taken money of Rs.1.5 lakh in cash and Rs.3.5 lakhs through cheque bearing no.802025 Canera Bank in lieu of providing job to the son of opposite party no.2.

4. Learned counsel for the appellants submits that appellants are innocent and have been falsely implicated. Neither appellants have committed maarpeet nor abused to the complainant. Appellant no.1 is a Government Teacher whereas the appellant no.2 is a businessman, who is running a jewelry shop. He further submits that the learned court below without complying the provisions of Section 223 (1) B.N.S.S. has summoned the appellants, which is illegal and not sustainable in the eye of law, therefore, the same is liable to be set aside. 2 CRLA No. 7668 of 2025

5. During arguments, learned counsel for the appellants has raised a legal question that under Section 223 B.N.S.S., a notice to the accused is mandatory. In support of his submission, learned counsel for the appellants has relied upon the judgement of Karnataka High Court in the case of Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil passed in Criminal Petition No.7526 of 2024.

6. Learned A.G.A. vehemently opposes the prayer made by learned counsel for the appellants, but does not dispute the intentions of the Section 223 of B.N.S.S. as well as the legal pronouncement of the High Court of Karnataka in the aforesaid case.

7. I have heard the submissions advanced by learned counsel for the parties and perused the material available on record.

8. Proviso to sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an accused, 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.

9. In the case of Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil, the Karnataka High Court has held as under (paragraphs 8, 9, 10 & 11): "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. 3 CRLA No. 7668 of 2025

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.

10. Considering the facts and circumstances of the case as well as law laid down in the case of Sri Basanagouda R. Patil (Supra), the instant criminal appeal is allowed. The impugned summoning 12.08.2025 passed by Special Judge (SC/ST Act)/Additional Session Judge, Agra is hereby set aside.

11. The matter is remitted back to the Court below to decide the matter afresh strictly in accordance with law as per mandate of Section 223 of the B.N.S.S., 2023 and to pass a reasoned order, preferably within a period of three month from the date of production of a certified copy of this order. September 12, 2025 Ajeet (Shekhar Kumar Yadav,J.) AJEET KUMAR PATEL High Court of Judicature at Allahabad