SUBY ANTONY Vs. R1(DELETED)

JUDGEMENT

(1.) The introduction of three new criminal laws; the Bharatiya Nyaya Sanhita (BNS for short), Bharatiya Nagarik Suraksha Sanhita (BNSS for short) and Bharatiya Sakshya Adhiniyam (BSA for short), has given rise to many interesting and intriguing legal issues. One such conundrum, coming up for consideration in this case, is whether Sec. 223(1) of the BNSS envisages issuance of notice to the accused named in the complaint before taking cognisance of the offence.

(2.) Adv.Shaju Francis appearing for the petitioner submitted that the court below grossly 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 is the submission of the learned counsel that the illegality is perpetuated by the learned Magistrate issuing notice to the accused, in spite of the oral objection raised initially and the written objection filed thereafter. According to the counsel, even on plain reading of Sec. 223(1), it is apparent that the accused need be issued with notice only at the stage of taking cognisance. It is submitted that the legal position as to when notice under Sec. 223(1) is to be issued, laid down by the High Court of Karnataka in Basanagouda R Patil v. Shivananda S Patil [2024 SCC OnLine Kar 96], though brought to the notice of the learned Magistrate, was not adverted to.

(3.) The contentions call for close scrutiny of Sec. 223(1) of BNSS, since in Sec. 200 of Cr.P.C, which is the corresponding provision in the Code, the proviso to Sec. 223(1) was absent. Presumably, the purpose behind the proviso is to provide an opportunity to the Magistrate to assimilate the correct facts, for deciding whether or not to take cognizance of the offence. For ease of reference, Sec. 223 is extracted hereunder;