S.223 BNSS | Notice To Accused Can't Be Issued Before Recording Sworn Statement Of Complainant & Witness: Karnataka HC Lays Down Procedure

Clarifying the procedure to be followed by magisterial courts on issuance of notice on complaints under Section 223 BNSS, the Karnataka High Court Friday underlined that the opportunity of hearing to be provided to the accused in the provision is not an empty formality, without which cognizance cannot be taken.

Section 223 BNSS pertains to examination of complaints and states that a magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. It adds that the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses as well as by the Magistrate. The first proviso states that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

The court passed the order while hearing a petition filed by BJP leader and MLA Basanagouda R Patil (Yatnal) who had approached the court questioning the notice issued to him by the magisterial court on the defamation complaint filed by Shivananda S Patil. The petitioner had claimed that the notice issued to him did not follow the procedure as per law.

On the interpretation of the provision to the case, a single judge bench of Justice M Nagaprasanna said, "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".

The high court observed that to steer clear of this confusion it is important to note the language of the provision. It observed that as per the provision the Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and the statements of witnesses if any.

It thereafter said that the taking of cognizance under Section 223 BNSS would come "after" the sworn statement of the complainant is recorded; at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.

Setting the procedural drill to be followed regarding the provision the court said,

"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".

It further said, "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".

With respect to the petition before it, the court noted that the moment the complaint was filed a notice was issued to the accused which was an erroneous procedure. Allowing the plea the court said that it deserves to succeed on the ground of "procedural aberration". Quashing the magisterial court's order the high court remitted the matter asking the magisterial court to "redo the exercise afresh, from the stage of entertainment of the complaint", bearing in mind the observations made by the high court.

The exercise is to be completed in four weeks, the high court added.

Case Title: BASANAGOUDA R PATIL (YATNAL) AND Shivananda S Patil

Case No: CRL.P 7526/2024

Citation No: 2024 LiveLaw (Kar) 417

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