Case title – Rakesh Kumar Chaturvedi vs. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another
The Allahabad High Court last week clarified that a Magistrate cannot issue a notice to a prospective accused under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), without first recording the statements of the complainant and the witnesses, if any.
With this, a bench of Justice Rajnish Kumar quashed a notice issued to the accused (applicant-Rakesh Kumar Chaturvedi) in violation of this procedure by the Additional Chief Judicial Magistrate-II, Lucknow
The Court found that the impugned notice had been issued before any sworn statement of the complainant or witnesses was recorded, contrary to the procedural mandate under Section 223 BNSS.
Explaining the procedure to be undertaken by a magistrate after a complaint is filed before him under Section 210 BNSS, the single judge noted that the Magistrate must first examine, upon oath, the complainant and the witnesses, if any,
Thereafter, Justice Rajnish Kumar added that after considering the same, if he finds that there is no sufficient ground to proceed, he shall dismiss the complaint under Section 226 BNSS.
However, if he finds that it cannot be dismissed as such, he shall afford the accused an opportunity to be heard, for which the notice of being heard shall be issued at that stage. Only thereafter would he take cognizance after affording him an opportunity to be heard, the Court noted.
“Thus, after recording of the statement under Section 223 BNSS and upon consideration that some sufficient ground is made out to proceed, learned Magistrate shall issue notice to the accused”, the Court specifically observed.
To reach this conclusion, the single judge relied on a coordinate Bench decision in Prateek Agarwal Vs. State of U.P. and Another 2024, as well as on decisions of the High Courts of Karnataka and Kerala.
It may be noted that the Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil 2024 LiveLaw (Kar) 417 had clarified that the ‘procedural drill’ under Section 223 BNSS requires examination of the complainant and witnesses before issuing notice.
The Kerala High Court too followed this view in Suby Antony v. Judicial First-Class Magistrate 2025
Therefore, the Court set aside the impugned order, adding that the Court can issue notice to the accused in accordance with law before taking cognizance of the matter.
