2025 (7) TMI 1526 - HC - Indian Laws

Cognizance taken by learned Magistrate without giving an opportunity u/s 223 of the BNSS to the petitioner - principles of natural justice - HELD THAT - Earlier the provision of Section 223 of the BNSS does not find place in Section 200 of the Code of Criminal Procedure. Now as per the enactment prior to taking the cognizance the Magistrate is duty bound to give an opportunity of being heard to the accused as per subsection (1) of Section 223 of the BNSS which puts an embargo on the powers of the Court to take cognizance and without giving an opportunity of hearing the learned Magistrate has taken the cognizance. Admittedly an opportunity of being heard was not given by the learned Magistrate to the present petitioner accused before taking the cognizance on the said ground and considering the statutory provision of Section 223 of the BNSS and in light of the judgment passed by the Hon ble Apex Court in the case of Kushal Kumar Agarwal Vs. Directorate of Enforcement 2025 (5) TMI 2001 - SUPREME COURT present petition deserves consideration. The impugned order passed by the learned Additional Chief Judicial Magistrate Ahmedabad City is hereby quashed and set aside. Petitioner accused is directed to appear before the learned Magistrate on 21.07.2025 - petition allowed.

Summary

ISSUES:

Whether a Magistrate can take cognizance of an offence on complaint without giving the accused an opportunity of being heard as mandated under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.Whether the proviso to Section 223(1) of the BNSS exempts a Magistrate from examining the complainant and witnesses when the complaint is made by a public servant acting in discharge of official duties.Whether the impugned order taking cognizance without hearing the accused is liable to be quashed and set aside.

RULINGS / HOLDINGS:

The Court held that Section 223(1) of the BNSS imposes a duty on the Magistrate to give the accused an opportunity of being heard prior to taking cognizance of an offence, stating that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."The Court recognized the proviso to Section 223(1) exempts the Magistrate from examining the complainant and witnesses if the complaint is made by a public servant acting in official capacity, but this does not dispense with the requirement to give the accused an opportunity of being heard.The impugned order taking cognizance without affording the accused an opportunity of hearing was quashed and set aside as it violated the statutory mandate under Section 223(1) of the BNSS.

RATIONALE:

The Court applied the statutory framework of Section 223 of the BNSS, which came into effect on 1st July 2024, introducing a procedural safeguard not previously found in Section 200 of the Code of Criminal Procedure.The Court emphasized that the "embargo on the powers of the Court to take cognizance" without hearing the accused is a clear legislative intent to protect the accused's right to be heard at the cognizance stage.The Court relied on the precedent set by the Apex Court in Kushal Kumar Agarwal Vs. Directorate of Enforcement, affirming the necessity of hearing the accused before cognizance.The proviso allowing non-examination of the complainant when the complaint is by a public servant does not remove the accused's right to be heard, maintaining procedural fairness.