2025 (4) TMI 1672 - HC - Indian Laws

Cognizance of an offence by the Magistrate without giving the accused an opportunity of being heard - interpretation of Section 223 of BNSS - HELD THAT - Considering the submissions so made across the bar and the fact that the complaint stood lodged on 28.08.2024 and summoning order has been passed on 28.08.2024 thus looking into the fact that already the provisions under Section 223 proviso (i) to Section 223 of BNSS has come into force and they were operational thus opportunity of hearing ought to have been accorded to the applicant before taking cognizance hence the order dated 28.08.2024 passed by the Court of Additional District and Sessions Judge Court No. 12 Saharanpur is set aside the matter is remitted back to the court below to pass a fresh order strictly in accordance with law with most expedition. The application stands disposed of.

Summary

ISSUES:

Whether a Magistrate can take cognizance of an offence under the BNSS, 2023 without giving the accused an opportunity of being heard as mandated by proviso (i) to Section 223 of BNSS'What is the correct procedural sequence for taking cognizance of an offence under Section 223 of BNSS, 2023'Whether a summoning order passed without compliance with the opportunity of hearing under Section 223 proviso (i) of BNSS is sustainable?

RULINGS / HOLDINGS:

The Court held that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard" as per proviso (i) to Section 223 of BNSS, 2023, and therefore, the summoning order passed without such opportunity is liable to be set aside.The procedural sequence under Section 223 requires that upon presentation of a complaint, the Magistrate must first examine the complainant and witnesses on oath, reduce the substance to writing, and then issue notice to the accused attaching the complaint and sworn statements, thereby giving the accused an opportunity to be heard before taking cognizance.The summoning order dated 28.08.2024 was quashed and the matter was remitted back to the trial court to pass a fresh order strictly in accordance with the procedural requirements of Section 223 proviso (i) of BNSS, 2023.

RATIONALE:

The Court relied on the statutory framework of Section 223 of BNSS, 2023, which explicitly mandates examination of the complainant and witnesses on oath and requires that no cognizance be taken without giving the accused an opportunity of being heard.The Court referred to precedents including a coordinate bench decision and the Karnataka High Court judgment, which clarified the interpretation of Section 223, emphasizing that notice to the accused and opportunity to be heard must follow the recording of sworn statements before cognizance is taken.The Court identified a procedural aberration in the earlier practice of issuing notice immediately upon filing the complaint without recording sworn statements, which was held to be contrary to the statutory mandate.The decision represents a doctrinal clarification ensuring strict adherence to the procedural safeguards introduced by BNSS, 2023, reinforcing the accused's right to be heard prior to cognizance.