2024 (9) TMI 1780 - HC - Indian Laws

Interpretation of statute - Section 223 of the BNSS - petitioner made a defamatory speech against the respondent at an election rally - HELD THAT - 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 - 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. 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. 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 - Petition allowed by way of remand.

Summary

ISSUES:

Whether under Section 223 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS), notice to the accused must be issued immediately upon filing of the complaint or only after recording the sworn statement of the complainant and witnesses.Whether the Magistrate's procedure of issuing notice to the accused at the stage of complaint filing complies with the statutory mandate under Section 223 of BNSS.What is the correct procedural sequence for taking cognizance of an offence on a complaint under Section 223 of BNSS.

RULINGS / HOLDINGS:

The Court held that the notice to the accused under the proviso to Section 223(1) of BNSS must be issued only after the Magistrate records the sworn statement of the complainant and witnesses, as the Magistrate "while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses."The procedure adopted by the Magistrate in issuing notice immediately upon filing of the complaint, without recording the sworn statement, was held to be "erroneous" and contrary to the statutory mandate.The correct procedural drill requires that after presentation of the complaint, the Magistrate must first record the sworn statement of the complainant and witnesses, reduce it to writing, and only then issue notice to the accused to provide an "opportunity of being heard" before taking cognizance.

RATIONALE:

The Court relied on the language of Section 223 of BNSS, which corresponds to Section 200 of the earlier Cr.P.C., emphasizing that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."The Court interpreted that "taking cognizance" necessarily follows the recording of the complainant's and witnesses' sworn statements, and the notice to the accused must be issued at this stage to enable meaningful hearing, not as a mere formality.The Court distinguished issuance of notice from the mere filing of the complaint, clarifying that the latter does not trigger the statutory requirement to notify the accused before cognizance.The ruling preserves the procedural safeguards embedded in BNSS, ensuring the accused receives the complaint, sworn statements, and witness statements appended to the notice to effectively prepare their defense before cognizance.No dissent or doctrinal shift was noted; the Court's interpretation aligns with established procedural principles under the BNSS and prior Cr.P.C. provisions.