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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
CRIMINAL PETITION No.7526 OF 2024
SRI BASANAGOUDA R. PATIL (YATNAL) Vs SRI SHIVANANDA S. PATIL
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
Pronounced on : 27.09.2024
The petitioner is before this Court calling in question an order
dated 16-07-2024 passed by the 42nd Additional Chief Judicial
Magistrate, Benagluru in P.C.R. No.9136/2024.
2. Heard the learned counsel Sri. Venkatesh P. Dalwai,
appearing for the petitioner and the learned counsel
Smt. Niveditha C. Shivanaikar, appearing for the respondent.
3. Sans details, facts in brief, germane are as follows:
The respondent - a member of the legislative assembly
registers a complaint against the petitioner before the jurisdictional
Magistrate invoking Section 223 of the Bharatiya Nagarika Suraksha
Sanhita, 2023 (‘BNSS’ for short). The crux of the complaint is, the
petitioner allegedly made a defamatory speech at an election rally.
The issue in the lis at this juncture does not concern the merit of
the compliant or its defence by the parties to the present lis. What
has driven the petitioner to this Court in the subject petition is, a
unique circumstance of interpretation of Section 223 of the BNSS.
4. Learned counsel Sri Venkatesh P Dalwai appearing for the
petitioner would submit that the petition itself is preferred owing to
a procedural aberration by the learned Magistrate. It is his
contention that under Section 223 of the BNSS, the concerned
Court has to issue notice to the accused prior to taking of
cognizance. The Court has issued notice the moment complaint is
filed by the respondent before the concerned Court. He would
submit that this procedure is contrary to law.
5. Learned counsel appearing for the respondent would refute
the submission by contending that the proviso to
Section 223 of the BNSS mandates that prior to taking of
cognizance the accused would be heard and it is no where said that
notice should be issued only at a particular time either immediately
after filing the complaint or recording of sworn statement, as the
case would be. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The registration of the private complaint for offences
punishable under Section 356(2) of the BNSS is not in dispute. The
fulcrum of the compliant was that the petitioner made a defamatory
speech against the respondent at an election rally. The issue that is
brought before the Court, at this juncture, is not on the merit of the
matter. The complaint is filed by the respondent invoking Section
223 of the BNSS, which is Section 200 in the earlier regime -
Cr.P.C. The moment complaint is registered, a notice is issued to
the accused. Issuance of notice to the accused has driven the
petitioner to this Court, in the subject petition, contending that it is
contrary to the procedure to be adopted in law.
Therefore, it becomes germane to notice certain provisions of the
BNS 2023. Filing of the private complaint is dealt with under
Section 223 of the BNSS, which was Section 200 of Cr.P.C., it reads
as follows:
“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.”
(Emphasis supplied)
Proviso to sub-section (1) of Section 223 of the BNSS 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 BNSS deals with issuance of
process which is akin to Section 204 of the Cr.P.C. This stage is yet
to arrive in the case at hand.
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 Accused 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.
Sd/-
(M. NAGAPRASANNA)
JUDGE
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