The Allahabad High Court at Lucknow has quashed an order of the Additional Chief Judicial Magistrate-II, Lucknow, observing that issuance of notice to the accused without recording the complainant’s and witnesses’ statements violates the mandatory procedure prescribed under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Background of the Case
The application under Section 528 BNSS was filed by Rakesh Kumar Chaturvedi seeking quashing of the order dated 10 February 2025, passed by the ACJM-II, Lucknow in Misc. Case No. 807/2025, whereby notice was issued to him without recording statements of the complainant or any witnesses.
Arguments of the Applicant
Appearing for the applicant, learned counsel Sri Shantanu Sharma argued that the impugned notice was contrary to the statutory provisions of Section 223 of BNSS. He submitted that a Magistrate is required to record statements of the complainant and the witnesses, if any, before issuing notice to the accused or taking cognizance.
To support this contention, the applicant relied on:
- A judgment dated 26.11.2024 of a coordinate bench in Prateek Agarwal vs. State of U.P. & Another (Application under Section 482 CrPC No.10390 of 2024),
- Decision of the Karnataka High Court in Basanagouda R. Patil vs. Shivananda S. Patil (2024 SCC Online Kar 96), and
- Decision of the Kerala High Court in Suby Antony vs. Judicial First-Class Magistrate (Crl. MC 508/2025, decided on 22.01.2025).
Response from the State
Learned AGA Sri Anurag Verma, while opposing the prayer, could not refute the legal position. He submitted that the impugned notice may be quashed and the matter remitted to the Magistrate for proceeding in accordance with law after recording the required statements.
Observations of the Court
Justice Rajnish Kumar noted that a complaint had been filed by respondent no. 2 and, without recording the complainant’s or witnesses’ statements, notice was issued to the accused, which was contrary to Section 223 BNSS.
The court explained the statutory mandate as follows:
“After recording statement of the complainant and the witnesses, if any, the Magistrate before taking cognizance in the matter, shall afford an opportunity of being heard to the accused.”
The court emphasized that if the Magistrate finds no sufficient ground to proceed after examining the statements and conducting an inquiry (if any), the complaint can be dismissed under Section 226 BNSS. This mechanism is in place to prevent unnecessary harassment to the accused.
Quoting the Karnataka High Court judgment, the Court reiterated:
“The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements… Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.”
The Allahabad High Court also took note of a blank notice (Annexure No.1) issued in this case, with blanks unfilled except the applicant’s name, and cautioned that such notices should not be issued in the future.
Final Order
Finding the impugned notice and the process adopted as legally unsustainable, the Court held:
“The application is allowed. The impugned order dated 10.02.2025 passed by learned Additional Chief Judicial Magistrate-II, Lucknow in Misc. Case No.807/2025 is hereby quashed.”
The matter was remitted to the trial court with a direction to first record statements of the complainant and witnesses and thereafter proceed in accordance with law.
