TaxTMI 
TaxTMI 
2025 (11) TMI 2047
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....tending a meaningful opportunity of hearing to the accused as mandated by Section 223 BNSS, 2023, and whether the order survives revisional scrutiny given the constitutional protection of robust political expression. 2. To be specific, this case brought by Thiru.Seeman, a political leader, against a private complaint of defamation instituted by Thiru. Varun Kumar, IPS, presents more than a procedural contest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It engages foundational questions at the heart of our constitutional order, the scope of a politician's right to criticise bureaucratic action, the duty of a career civil servant to absorb criticism that attends official decisionmaking, and the limits of criminal process when deployed at the precognizance stage in a politically charged environment. Gamut of the complainant's case before the learned Trial Court: 3. The private complaint was presented by Thiru.Varun Kumar, IPS, narrating his academic and service credentials and his tenure as Superintendent of Police in multiple districts. He traced political events following action against one "Sattai" Durai Murugan (of Naam Tamilar Katchi) in 2020 and, later, hi....
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....். இப்பவும் அவரை கைது பண்ணி திருச்சிக்கு கொண்டவரதும் வருண் IPS தான், இதயெல்லாம் மறந்திடுவோமோ?" 4. It is stated that a legal notice was issued by the complainant on 30.07.2024, for which a reply dated 06.08.2024 and a subsequent communication dated 22.08.2024, were received from the accused. The complaint further refers to Thillai Nagar, Trichy P.S. Crime No. 547 of 2024, Sections 55, 61, 224, 351(ii), 352, 353(ii) BNS, and Section 67 of the IT Act, registered on 29.07.2024, said to relate to connected publications/handles. 5. On the complainant's side, a sworn statement was recorded, and the complainant was examined as PW-1 and Ex.P1 to Ex.P7 were marked. PW-2 to PW-4 were examined as witnesses to the publication/impact of publi....
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....sance" law: By relying on sworn statements under the very chapter dealing with post-application steps, the learned Magistrate evinced application of mind to proceed in a particular way, as demonstrated in R.R. Chari v. State of U.P. 1951 SCR 312, Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee AIR 1950 CAL 437, further affirmed in Dr. Subramanian Swamy v. Dr. Manmohan Singh 2012 (1) SCC 1041, and only thereafter extended a hearing, contrary to Section 223 BNSS's proviso. 10.3. Jurisdiction & Section 225 BNSS: The accused resides outside jurisdiction; a calibrated Section 225 inquiry to prevent forum shopping was required but not undertaken. 10.4. Multiplicity/parallel proceedings: With connected FIR(s) pending on the same substratum, a private complaint of defamation risks abuse, as substantiated in Krishna Lal Chawla v. State of U.P. (2021) 5 SCC 435). 10.5. AIS Conduct Rules: Proceedings wearing an official colour (IPS designation in notice/pleadings) allegedly required prior governmental permission. 10.6. Free political speech: The impugned words, in context, constitute political comment on official conduct. The criminal process c....
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....any, were responses to reporters' questions during an open press interaction, interestingly a classic arena for opinion/fair comment on public functionaries. He also pointed out that, the context of the alleged interview included multiple episodes: transfers, mass arrests, bail orders criticising police actions, revocation of preventive detention (Goondas) by the Advisory Board, and alleged selective registration of cases against party workers, forming a good-faith belief. Thus, he claimed that, the case falls within statutory exceptions (good faith/public interest), defeating mens rea. He forcefully argued that, at minimum, the learned Magistrate should have weighed the exception context at the pre-cognizance inquiry mandated by Sections 223/225 of BNSS, 2023. 11.5. Pointing out that the accused resides outside the Magistrate's jurisdiction, the learned counsel submitted that, BNSS Section 225 obligates the Court to conduct a careful inquiry/scrutiny to prevent forum shopping, examining where the alleged publication occurred, where harm ensued, and whether jurisdictional facts are pleaded and sworn. He also drew my attention that, the complaint and sworn statement are silent or....
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.... Government servant cannot circumvent Conduct Rules by later recharacterising the dispute as "purely personal" when the alleged hurt flows from official acts. Absence of permission is fatal. Last but not the least, he pressed for setting aside the cognisance/impugned order for: a)Non-compliance with Section 223 proviso (no meaningful hearing; copies not supplied in time; objections not addressed); b)Failure to conduct Section 225 inquiry for outside-jurisdiction accused; c)Inadequate pre-summoning evidence; d)Parallel/duplicative proceedings abuse; e)AIS Rules infraction. f)Alternatively, remit with directions: furnish a full set of materials; permit comprehensive objections; require a reasoned order on Section 223/225, taking into account the Exceptions plea and jurisdictional facts. 12. The arguments of the learned Senior Counsel Mr. Raghavachari for Mr.Jagadeesh Pandiyan appearing for the Respondent/Complainant are crystallised as follows: 12.1. The learned Senior Counsel lamented that, he is at loss to understand, how the accused is seeking cross-examination of witnesses "at this stage." Categorically contending that, ....
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....plaint paragraphs emphasise personal defamation of "Varun" as an individual, not institutional criticism of "SP/IPS." The impact is upon relatives and colleagues questioning if he is a casteist, causing deep reputational harm. Therefore, the learned senior counsel insisted that, Rule 17 of the All India Services (Conduct) Rules requiring prior Governmental permission (for official-capacity proceedings) does not apply. This is a private complaint to vindicate personal reputation. 12.8. The learned senior counsel categorically contended that, the defense leans on Exception 3 to Section 352 BNSS (akin to fair comment/good-faith opinion) and pointed out that, as per Subramanian Swamy v. Union of India (2016) 7 SCC 221, the burden to prove an exception is on the accused and arises at trial, not at cognisance. Pointing out that, the accused's own notice-reply does not deny authorship; he claims public interest/fair comment. That squarely triggers a triable issue; it cannot defeat cognisance. 12.9. The learned senior counsel further submitted that, the private complaint under Section 356 BNSS (defamation) is distinct from police FIRs invoking other enactments (e.g., IT Act pro....
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.... cognisance twice, first on sworn statements and again after objections, thereby vitiating the order? (iii) Whether the learned Magistrate failed to discharge the obligations akin to Section 225 BNSS to guard against forum shopping and multiplicity, given the accused's residence outside jurisdiction and connected FIRs? (iv) What contours of constitutional protection of political speech and the appropriate response of police officials ought to guide the threshold evaluation? Analysis: 16. The Statutory Sequence under Section 223 BNSS: Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is a newly introduced architecture which codifies a pre-cognizance hearing in private complaints, an advance safeguard against frivolous or vexatious prosecutions. This Court makes it clear that the legislative purpose is plain. Before a Magistrate applies his mind to proceed in the manner contemplated in Chapter XVI "Complaints to Magistrates" (i.e., recording the complainant on oath, holding an inquiry, or issuing process), the accused is to be afforded an opportunity of being heard, well before taking cognisance. This is not a silent, post-facto courtesy; it is a....
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.... in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them." 20. A comparison of these provisions reveals two crucial changes: first, the insertion of the words "while taking cognisance" in the opening part of Section 223; and second, the introduction of a new first proviso which mandates that no cognisance shall be taken without giving the accused an opportunity of being heard. Thus, the new edifice of the BNSS, 2023, under Chapter XVI "Complaints to Magistrates", canvasses and strengthens the right of the proposed accused to an opportunity of hearing at the pre-cognisance stage. 21. Put differently, under the BNSS, the Magistrate is moving through distinct stages "while taking co....
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....itself, compel the physical appearance of the person, nor does it invest the Court with jurisdiction over him as an accused. 24. In contradistinction, a summons issued under the Chapter of the BNSS relating to "Process to Compel Appearance" is a formal judicial act, undertaken only after the Court has taken cognizance and has consciously decided to proceed against the person as an accused. A summons is a coercive process obligating the accused to appear before the Court to answer the accusation and activating the entire statutory machinery of bailable warrant, non-bailable warrant, proclamation and attachment in the event of non-compliance. While notice serves the objective of satisfying natural justice and affording a preliminary or procedural hearing, a summons represents the exercise of the Court's coercive jurisdiction and marks the commencement of the accused's participation in the criminal trial. Thus, the two concepts operate at distinct procedural stages and carry entirely different legal consequences under the BNSS framework. 25. This Court has conceived a Comparative Table in this regard as follows: Feature Notice by Criminal Court (BNSS, 2023) Summons by C....
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.... It does not compel appearance nor confer upon the Court jurisdiction over such person as an accused. A summons, however, is a formal judicial process issued post-cognizance, requiring the accused to appear before the Court, and non-appearance attracts the entire coercive hierarchy of bailable warrant, non-bailable warrant and proclamation. 27. In the context of Section 223 of the BNSS, 2023, this Court underscores that the issuance of a notice to the proposed accused is an antecedent safeguard mandated by the statute. The Magistrate, upon receipt of a private complaint, is obligated to afford such person an opportunity of being heard before taking cognizance. This notice is thus purely procedural, intended to satisfy natural justice, and does not amount to issuance of process. Only after the Magistrate applies his judicial mind, records satisfaction under Chapter XVI, and decides to proceed against the person, does the Court enter the domain of coercive process by issuing a summons. The two steps: notice under Section 223 and summons under the Process to Compel Appearance, are distinct, non-interchangeable, and operate at different procedural stages. 28. Hence, in the consid....
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....he Kerala High Court in Suby Antony v. Judicial FirstClass Magistrate III 2025: KER : 6236 observed that, being guided by precedents on Sections 200 and 202 Cr.P.C., 1973, and the plain language of the proviso to Section 223(1) BNSS, the Magistrate should, first, examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence, afford an opportunity of hearing to the accused. According to that view, cognizance in a complaint case occurs after the recording of statements under Section 223 but before the issuance of process under Section 227 of the BNSS, after giving an opportunity of hearing to the proposed accused. 32. The Allahabad High Court (Lucknow Bench) in Prateek Agarwal v. State of U.P. 2024 SCC Online All 8212 has also provided significant clarification regarding the safeguards under Section 223 BNSS. There, the Chief Judicial Magistrate had issued a summoning order to the accused even before recording the statements of the complainant and witnesses on oath. The High Court quashed the summoning order as being in violation of the mandatory procedure. That decision underscores that the Magistrate mu....
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.... for investigation shall be made,- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 223. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Sanhita on an officer in charge of a police station except the power to arrest without warrant." "226. Dismissal of complaint.-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225, the Magistrate is of opinion that there is....
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....ly decides to proceed, and that the accused's hearing will be meaningful, not perfunctory. In the case on hand, the petitioner's specific grievance is that copies were not furnished at the proper stage and the objections were taken after the Magistrate had already set the matter in motion by issuing summons. Further, the issues framed and answered in the impugned order do not reflect a genuine, open-minded consideration of the jurisdictional and statutory objections raised. Thus, even if one were to adopt the timing approach suggested in Basanagouda R. Patil v. Shivananda S. Patil (2024) 4 MLJ (crl) and Suby Antony v. Judicial First-Class Magistrate III 2025: KER : 6236, the procedure followed by the learned Magistrate in this case would still fall foul of the requirement that the opportunity of being heard must be effective and prior to the final cognizance decision. 38. Secondly, Basanagouda R. Patil v. Shivananda S. Patil (2024) 4 MLJ (crl) and Suby Antony v. Judicial First-Class Magistrate III 2025: KER : 6236 were not cases where the Magistrate had, as here, effectively taken cognizance twice, first by recording sworn statements and issuing summons, and....
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....te of U.P (2021) 5 SCC 435, about the powers bestowed on the Magistrates has held as follows: "18. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens' life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate - and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate : (SCC p. 760, para 28) "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. I....
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....e Judge is not actively involved in 'fact-finding' owing to the adversarial nature of our justice system. However, Section 165 of the Indian Evidence Act, 1872 by providing the Judge with the power to order production of material and put forth questions of any form at any time, marks the influence of inquisitorial processes in our legal system. This wide-ranging power further demonstrates the central role played by the Magistrate in the quest for justice and truth in criminal proceedings, and must be judiciously employed to stem the flow of frivolous litigation. 21. All of this leads to one inescapable conclusion. That the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasised on the high degree of responsibility shouldered by the trial Judges in All India Judges' Association v. Union of India. Ranganath Misra CJ (as he was then) writing for himself and two others stated: (SCC p. 134 para 42) "42. The trial Judge is the kingpin in the hierarchical system of administration of ju....
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.... have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land." 42. Needless to state that the respondent has used the justice delivery system for his personal vendetta. 43. Exceptions, Free Political Speech, and the Proper Forum: True it is that exceptions to defamation are matters of defence ordinarily tested at trial (Subramanian Swamy v. Union of India (2016) 7 SCC 221 ). Equally true, however, is that revisional Courts must be vigilant where criminal law is deployed to chill political speech. No doubt, the impugned words were uttered in the midst of a politically charged episode concerning policing of opposition cadres, unq....
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....insic to political persuasion. Interestingly, the petitioner in the instant case, has always personified himself as a "man of rhetoric hyperboles", only next to Thiru.Vai.Ko, in the political landscape of the State of Tamil Nadu. While Article 19(2) permits narrowly tailored restrictions, criminal law, especially the criminal law of defamation, must be invoked sparingly and with procedural exactitude, lest it chill legitimate dissent and debate. Decisions such as R. Rajagopal v. State of TN 1994 SCC (6) 632, S. Khushboo v. Kanniammal (2015) 5 SCC 1, and Shreya Singhal v. Union of India (2010) 5 SCC 600 recognise that public discourse on governance and public officials is entitled to a wide berth and that State power, including the criminal law, cannot be used to silence criticism merely because it is unpalatable or politically inconvenient. Equally, Subramanian Swamy v. Union of India (2016) 7 SCC 221 preserves the statutory architecture of criminal defamation but reiterates that statutory Exceptions are matters of defence and that free speech in the public arena demands careful judicial calibration. 48. In the Indian constitutional scheme, politicians and ....
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....ion amounting to taking cognisance twice, and failure to undertake Section 225 BNSS screening commensurate with the facts placed. 53. All consequential proceedings, including summons issued to the petitioner, stand quashed. 54. Liberty is reserved to the complainant to reinstitute proceedings, if so advised, strictly in accordance with law, subject to the following mandatory directions: (a) Issue notice with full and prior supply to the proposed accused of the complaint, sworn materials, and annexures, and grant of a meaningful opportunity of being heard, before any step indicative of cognisance is undertaken, in faithful compliance with Section 223 BNSS, 2023. (b) A reasoned order on jurisdiction and abuse-prevention in terms analogous to Section 225 BNSS, 2023, specifically addressing the residence of the accused outside jurisdiction, place(s) of publication and consequence, and the existence of parallel FIRs/proceedings on the same substratum. (c) The learned Magistrate shall record awareness of the constitutional sensitivity of political speech and the institutional role of police leadership and proceed only if a clear prima facie case survives ....