2024 (9) TMI 1780

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....editha C. Shivanaikar, appearing for the respondent. 3. Sans details, facts in brief, germane are as follows: The respondent - a member of the legislative assembly registers a complaint against the petitioner before the jurisdictional Magistrate invoking Section 223 of the Bharatiya Nagarika Suraksha Sanhita, 2023 ('BNSS' for short). The crux of the complaint is, the petitioner allegedly made a defamatory speech at an election rally. The issue in the lis at this juncture does not concern the merit of the compliant or its defence by the parties to the present lis. What has driven the petitioner to this Court in the subject petition is, a unique circumstance of interpretation of Section 223 of the BNSS. 4. Learned counsel Sri Venkate....

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....e moment complaint is registered, a notice is issued to the accused. Issuance of notice to the accused has driven the petitioner to this Court, in the subject petition, contending that it is contrary to the procedure to be adopted in law. Therefore, it becomes germane to notice certain provisions of the BNS 2023. Filing of the private complaint is dealt with under Section 223 of the BNSS, which was Section 200 of Cr.P.C., it reads as follows: "223. Examination of complainant.-(1) A Magistrate having jurisdiction 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 and shall be signed by the comp....

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....nesses present if any and reduce it into writing. The proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the BNSS deals with issuance of process which is akin to Section 204 of the Cr.P.C. This stage is yet to arrive in the case at hand. 8. 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 a....

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....hould 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. 12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec. 356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS....