BNSS | Police Report In Non-Cognizable Offence Is Deemed A 'Complaint'; Accused Must Be Heard Before Summons In Such Cases : Allahabad HC

The Court further noted that in such cases, a Judicial Magistrate cannot issue summons without first affording the accused an opportunity of being heard as has been mandated under the first proviso to Section 223(1) BNSS.

A Bench of Justice Praveen Kumar Giri observed thus while setting aside a cognizance-cum-summoning order passed by a Judicial Magistrate in Shahjahanpur, for a non-cognizable offence. The Court termed the case to be of violation of Article 21 of the Constitution of India.

The Court noted that the Magistrate concerned erred in neither converting the charge sheet/police report disclosing 'non-cognizable offence' into 'complaint' nor taking cognizance under Section 210(1)(a) BNSS to proceed as 'trial of summons-case' instituted on complaint.

In other words, the Court found faults with the act of the Magistrate concerned in taking cognizance under Section 210(1)(b) BNSS and summoning the applicant without providing him an opportunity of hearing [as provided under 1st proviso of Section 223(1) BNSS] and also erroneously proceeded as trial of summons-case instituted on police report rather than complaint.

Case in brief

Briefly put, the case concerned a dispute between neighbors regarding toilet waste drainage. The complainant alleged that the accused had constructed a soak-pit toilet incorrectly which caused dirty water to flow into the open drain in front of his house. The altercation escalated on August 10, 2024, leading to alleged abuse and assault.

Consequently, a Non-Cognizable Report (NCR) was registered under Sections 115(2) (Voluntarily causing hurt) and 352 (Intentional insult with intent to provoke breach of peace) BNS. Following an investigation authorized by the Magistrate, the police submitted a charge-sheet.

Now, the core issue was this: the Judicial Magistrate took cognizance of the offence on this charge-sheet treating it as a police report under Section 210(1)(b) of the BNSS. The Magistrate then summoned the accused asking him to face trial of summons-case instituted on police report. Challenging this order, the accused moved the HC.

High Court's observations

Justice Giri pointed out that the procedure adopted by the Magistrate was fundamentally flawed. Relying on Explanation to Section 2(1)(h) of the BNSS, the single judge stressed that when after the investigation, the commission of a non-cognizable offence was alleged, it must have been treated a 'complaint' by treating the police officer to be the complainant.

The High Court observed that the Magistrate erroneously proceeded under Section 210(1)(b) (cognizance on police report) instead of Section 210(1)(a) (cognizance on complaint).

The High Court clarified as to why treating the case as a 'complaint' rather than a 'police case' is not merely technical but the same affects the substantive rights of the accused and the procedure of the trial.

The Court highlighted that under Section 223 BNSS [Examination of complainant], "no cognizance of an offence (on complaint) shall be taken by the Magistrate without giving the accused an opportunity of being heard”. It noted that by treating the matter as a police case, the Magistrate had denied the petitioners this statutory right.

Justice Giri further noted that in a trial of a summons-case instituted on a complaint, Section 279 BNSS (Section 256 CrPC) applies and so, if the complainant does not appear or dies, the Magistrate shall acquit the accused.

However, it added that this provision is not available in cases instituted on a police report (Section 281 BNSS), where discharge does not amount to acquittal.

"In the trial of summons cases instituted on complaint, the Trial Court of Magistrate has the power under Section 279 BNSS to acquit the accused, if the complainant is absent or has passed away, but under Section 281 BNSS, in the Trial of summons cases instituted on police report, the trial court of Magistrate does not have such power to acquit the accused in case of non-appearance of complainant or his death", the Court remarked.

Similarly, the Court also referred to Section 280 BNSS which allows a complainant to withdraw the complaint before a final order is passed, leading to acquittal. This is specific to complaint cases and the benefit of the provision isn't applicable in police cases.

Against this backdrop, the HC noted that the Judicial Magistrate erroneously passed cognizance-cum-summoning order in derogation of the provisions of BNSS.

Therefore, while quashing the summoning order, the High Court remanded the matter back to the Judicial Magistrate with the following direction:

• Treat the police report (charge-sheet), insofar as it discloses the commission of a non-cognizable offence, as a 'complaint'
• Proceed strictly in accordance with the provisions applicable in complaint cases.

The bench also directed the Magistrate concerned to exercise greater caution in future while passing summoning orders.

"The Magistrate shall bear in mind that the act of summoning an accused constitutes merely the taking of judicial notice of the material placed before the Court in the form of a chargesheet or complaint, and does not amount to any determination of guilt or innocence", Justice Giri said.

Importantly, in his concluding observation, the Court also noted that in the order impugned, the Magistrate had failed to mention his name, designation and ID at the place of his signature on the order.

Therefore, the HC also directed all Presiding Officers to "scrupulously comply" with High Court circulars requiring their details to be clearly mentioned below their signatures on every order.