Section 223 BNSS

Source: Allahabad High Court   

Why in News? 

Recently, Justice Rajnish Kumar has held that a Magistrate cannot issue notice under Section 223 of Bharatiya Nagarik Suraksha Sanhita,2023 (BNSS) without first recording the sworn statements of the complainant and witnesses and quashed the improperly issued notice. 

• The Allahabad High Court  held this in the matter of Rakesh Kumar Chaturvedi v. State of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another (2025). 

What was the Background of Rakesh Kumar Chaturvedi v. State of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another (2025) Case? 

• A complaint was filed against Rakesh Kumar Chaturvedi by the second respondent before the Additional Chief Judicial Magistrate-II, Lucknow. 
• Without recording any statements of the complainant or witnesses under oath, the learned Magistrate issued a notice dated 10th February 2025, to the applicant (accused) calling him to appear before the court. 
• The notice issued to the applicant was defective and incomplete - it was described as a "blank notice" that only mentioned the applicant's name while leaving other relevant particulars unfilled. 
• Aggrieved by this procedural irregularity, Rakesh Kumar Chaturvedi filed an application under Section 528 of the BNSS 2023 before the High Court seeking to quash the impugned notice. 
• The applicant's counsel argued that the notice was issued in violation of Section 223 BNSS, which mandates that before taking cognizance of an offence, the Magistrate must first examine the complainant and witnesses under oath and record their statements. 
• The State, through the Additional Government Advocate, while opposing the prayer, could not contradict the legal position and eventually agreed that the matter could be remitted back to the trial court for proper compliance with the statutory procedure. 
• The core issue before the High Court was whether a Magistrate can issue notice to an accused under Section 223 BNSS without first recording sworn statements of the complainant and witnesses, and whether such a procedural violation warrants quashing of the notice. 

What were the Court’s Observations? 

• The Court examined Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which mandates that a Magistrate having jurisdiction, while taking cognizance of an offence on complaint, shall examine upon oath the complainant and witnesses present, if any, and reduce the substance of such examination to writing. 
• The Court noted that the first proviso to Section 223 provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 
• The Court observed that Section 226 BNSS empowers the Magistrate to dismiss a complaint if, after considering the statements on oath of the complainant and witnesses, he finds no sufficient ground for proceeding. 
• The Court clarified the sequential procedure: after filing of a complaint under Section 210 BNSS, the Magistrate must first examine upon oath the complainant and witnesses, reduce such examination to writing, and have it signed by all parties including the Magistrate. 
• The Court emphasized that only after recording statements and considering whether sufficient grounds exist to proceed should the Magistrate issue notice to the accused for hearing before taking cognizance, ensuring the opportunity of hearing is not a mere formality. 
• The Court relied upon coordinate bench decisions from Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil and Kerala High Court in Suby Antony v. Judicial First-Class Magistrate, endorsing that taking cognizance under Section 223 BNSS comes after recording sworn statements. 
• The Court found that notices were issued to the applicant without recording statements of the complainant and witnesses, which violated the prescribed procedure under BNSS, and specifically noted the defective nature of the notice as a blank notice mentioning only the applicant's name. 
• The Court allowed the application, quashed the impugned order dated February 10, 2025, and directed the trial court to record statements of the complainant and witnesses before proceeding in accordance with law, concluding that proper procedure must be followed to avoid harassment of the accused. 

What is Section 223 of BNSS? 

• Basic Requirement: 
  • When a complaint is filed before a Magistrate, the Magistrate must examine the complainant and any witnesses present under oath before taking cognizance of the offence. 
  • The Magistrate must reduce the substance of such examination to writing and ensure it is signed by the complainant, witnesses, and the Magistrate himself. 
• Key Procedural Safeguard - First Proviso: 
  • The first proviso to Section 223(1) mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard, which is a significant departure from the previous law under Section 200 of the Code of Criminal Procedure. 
• Exceptions to Examination Requirement - Second Proviso: 
  • The second proviso to Section 223(1) provides that when a complaint is made in writing, the Magistrate need not examine the complainant and witnesses if the complaint is made by a public servant acting in official capacity or by a Court. 
  • Similarly, examination is not required if the Magistrate transfers the case to another Magistrate under Section 212 for inquiry or trial. 
• Transfer of Cases - Third Proviso: 
  • The third proviso to Section 223(1) clarifies that if a Magistrate transfers a case to another Magistrate under Section 212 after examining the complainant and witnesses, the receiving Magistrate need not re-examine them. 
• Special Protection for Public Servants - Sub-section (2): 
  • Sub-section (2)(a) of Section 223 provides additional safeguards for public servants by requiring that before taking cognizance of a complaint against a public servant for offences committed during official duties, the public servant must be given an opportunity to make assertions about the incident. 
  • Sub-section (2)(b) of Section 223 mandates that a report containing facts and circumstances of the incident must be received from the officer superior to such public servant before cognizance can be taken. 

Cases Referred  

• Prateek Agarwal v. State of U.P. and Another (2024): 
  • The court established the legal principle that notices cannot be issued to accused persons without first recording sworn statements of complainants and witnesses under Section 223 BNSS. 
• Basanagouda R. Patil v. Shivananda S. Patil (2024): 
  • The Karnataka High Court clarified the procedural requirements under Section 223 BNSS, holding that taking cognizance comes only after recording sworn statements, and notice to the accused should be issued at that juncture as mandated by the proviso.  
  • The Court established that the opportunity of being heard should not be an empty formality and must include the complaint, sworn statement, and witness statements. 
• Suby Antony S/o Late P.D. Antony v. Judicial First-Class Magistrate (2025): 
  • The Kerala High Court decision followed the Karnataka High Court's interpretation and reiterated that under Section 223 BNSS, the accused must be afforded an opportunity to be heard only after the Magistrate has examined the complainant and witnesses under oath.