Sec 223 BNSS: Notice to Proposed Accused Should be Issued After Recording Statement of Complainant and Witnesses: Allahabad HC  

The Allahabad High Court, Lucknow Bench, has ruled that a notice to the proposed accused in a complaint case should only be issued after the complainant and witnesses have given their statements on oath, as required under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The court quashed the October 15, 2024, order of the Chief Judicial Magistrate (CJM), Sitapur, which had prematurely summoned the accused, Prateek Agarwal, before fulfilling this legal requirement.  

Delivering the verdict in Application U/S 482 No. 10390 of 2024, Justice Rajeev Singh emphasized that the CJM’s order violated the express procedural safeguards under Section 223 of BNSS, thereby rendering it legally untenable.  

Background of the Case  

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The case stemmed from Case Crime No. 460/2023, registered at Kotwali Police Station, Sitapur, under Sections 302 (Murder) and 328 (Causing hurt by poison) of the Indian Penal Code (IPC). The applicant, Prateek Agarwal, was initially named as an accused, but the police investigation concluded there was no evidence against him, leading to the submission of a final report exonerating him.  

The complainant subsequently filed a protest petition, which the CJM treated as a complaint case under Section 210 of BNSS, 2023. However, the CJM issued a notice to the accused without first recording the sworn statements of the complainant and witnesses, prompting Agarwal to challenge the order before the High Court.  

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Legal Issues Considered  

The primary legal question before the High Court was:  

Can a Magistrate issue a notice to an accused in a complaint case before recording the complainant’s and witnesses’ sworn statements, as required under Section 223 of BNSS?  

Section 223 of BNSS, 2023, explicitly states:  

“A Magistrate, 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… No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”  

The proviso to Section 223(1) further clarifies that the accused must be given an opportunity of being heard before cognizance is taken.  

High Court’s Observations  

Justice Rajeev Singh noted that the CJM had committed a procedural error by issuing notice to the accused before recording the statements of the complainant and witnesses. The court referred to the Karnataka High Court’s judgment in Criminal Petition No. 7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil), which interpreted Section 223 BNSS to mandate that:  

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1. A complaint is presented before the Magistrate.  

2. The Magistrate must first examine the complainant and witnesses on oath.  

3. Only after these statements are recorded can a notice be issued to the accused.  

The High Court stressed that merely issuing a notice without first following this procedure is erroneous and violates BNSS, 2023.  

The court stated:  

“The moment a complaint is filed, issuing notice to the accused without first recording the complainant’s statement is procedurally defective. Such an order cannot stand in law.”  

Further, the court clarified that giving the accused an “opportunity to be heard” is not a mere formality, and the accused must be provided with:  

– A copy of the complaint  

– Statements of the complainant and witnesses recorded on oath  

This ensures that the accused is fully aware of the allegations before appearing in court.  

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High Court’s Decision  

After considering the legal provisions and precedents, the Allahabad High Court quashed the October 15, 2024, order of the CJM, Sitapur, and directed that:  

The CJM must first record the statements of the complainant and witnesses on oath before issuing any notice to the accused.  

A fresh order should be passed following the procedural mandate of Section 223 BNSS, 2023.  

The High Court concluded:  

“The impugned order is in violation of Section 223 BNSS and is hereby set aside. The CJM, Sitapur, is directed to redo the process in accordance with law.”  

Applicant (Prateek Agarwal) was represented by Advocates Ayush Singh, Rudra Pratap Singh, and Sushil Kumar Singh.

The State of Uttar Pradesh was represented by Additional Government Advocate (A.G.A.) Alok Kumar Tiwari.

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