Notice Cannot Be Issued To Prospective Accused Before Taking Cognizance: Kerala HC On Section 223(1) BNSS

The High Court made such an observation while quashing an order of a Judicial Magistrate.

The Single Bench of Justice V.G. Arun observed,“Being guided by the precedents on Sections 200 and 202 of the Code and the plain language of the proviso to Section 223(1) of the BNSS, this Court is of the opinion that , after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused.”

Advocate Shaju Francis represented the Petitioner while Senior Public Prosecutor Pushpalatha. M.K. represented the Respondents.

Arguments

It was the petitioner’s case that the Magistrate erred in issuing notice to the accused in the complaint filed by the petitioner, even before examining the petitioner and his witnesses on oath. It was contended that even on a plain reading of Section 223(1), it is apparent that the accused needs be issued with notice only at the stage of taking cognisance.

Reasoning

The Bench, at the outset, made it clear that the scrutiny of Section 223(1) of BNSS was required since in Section 200 of CrPC which is the corresponding provision in the Code, the proviso to Section 223(1) was absent. The Proviso provides an opportunity to the Magistrate to assimilate the correct facts, for deciding whether or not to take cognizance of the offence.

“Thus, the taking of cognisance of an offence occurs when the Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence alleged to have been committed by the accused.Once cognisance is taken, then the Magistrate has to decide whether to issue process to the accused or not. Section 225 confers power on the Magistrate to postpone the issue of process to the accused even after taking cognisance of the offence. At that stage the Magistrate can either inquire into the case himself, or direct investigation to be made by a police officer or such other person for the purpose of deciding whether there is sufficient ground for proceeding”, the Bench explained.

Referring to the judgment of the Apex Court in Smt.Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976), the Bench held that under the Code the accused had no locus standi even at the stage where the Magistrate decides whether or not to issue process to the accused. The Court further clarified that in spite of the proviso to Section 223(1) making it mandatory to provide an opportunity of hearing to the accused before taking cognisance, Section 226 does not reckon the accused's objection at the stage of taking cognisance as a relevant factor for dismissing the complaint.

The Bench concurred with the view of the Karnataka High Court in Basanagouda R Patil v. Shivananda S Patil (2024) wherein it has been held that the taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard. Thus, quashing the impugned order, the Bench directed the lower Court to examine the complainant and his witnesses, if any, upon oath. The accused, though issued with notice from the court below, shall be afforded an opportunity of hearing if the Magistrate decides to take cognisance of the offences mentioned in the complaint after such examination.

“Having found that notice could not have been issued to the prospective accused before taking cognisance, notice to respondents 2 to 10 in this Crl.MC is dispensed with”, it concluded.

Cause Title: Suby Antony v. R1 & Ors. (Neutral Citation: 2025:KER:6236)

Appearance:

Petitioner: Advocate Shaju Francis

Respondents: Senior Public Prosecutor Pushpalatha. M.K.

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