S.223 BNSS | 'Notice To Accused Can't Be Issued Without First Recording Statements Of Complainant, Witness': Allahabad High Court

With this, a bench of Justice Rajnish Kumar quashed a notice issued to the accused (applicant-Rakesh Kumar Chaturvedi) in violation of this procedure by the Additional Chief Judicial Magistrate-II, Lucknow.

The Court found that the impugned notice had been issued before any sworn statement of the complainant or witnesses was recorded, contrary to the procedural mandate under Section 223 BNSS.

"It is also noticed that the notice issued to the applicant, contained as Annexure No.1 is a blank notice without filling the blanks and mentioning the name of the applicant only, whereas notice should have been issued properly after filling all the relevant blanks and the concerned Court shall ensure that such notice is not issued in future", the Court remarked in its order.

Explaining the procedure to be undertaken by a magistrate after a complaint is filed before him under Section 210 BNSS, the single judge noted that the Magistrate must first examine, upon oath, the complainant and the witnesses, if any,

Thereafter, Justice Rajnish Kumar added that after considering the same, if he finds that there is no sufficient ground to proceed, he shall dismiss the complaint under Section 226 BNSS.

However, if he finds that it cannot be dismissed as such, he shall afford the accused an opportunity to be heard, for which the notice of being heard shall be issued at that stage. Only thereafter would he take cognizance after affording him an opportunity to be heard, the Court noted.

"Thus, after recording of the statement under Section 223 BNSS and upon consideration that some sufficient ground is made out to proceed, learned Magistrate shall issue notice to the accused", the Court specifically observed.

To reach this conclusion, the single judge relied on a coordinate Bench decision in Prateek Agarwal Vs. State of U.P. and Another 2024, as well as on decisions of the High Courts of Karnataka and Kerala.

It may be noted that the Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil 2024 LiveLaw (Kar) 417 had clarified that the 'procedural drill' under Section 223 BNSS requires examination of the complainant and witnesses before issuing notice.

The Kerala High Court too followed this view in Suby Antony v. Judicial First-Class Magistrate 2025 LiveLaw (Ker) 64.

Against the backdrop of these rulings, the Allahabad HC adverted to the facts of the present case and noted that notices were issued to the applicant without recording the statements of the complainant and witnesses, which, the Court said, is against the prescribed procedure under the BNSS.

Therefore, the Court set aside the impugned order, adding that the Court can issue notice to the accused in accordance with law before taking cognizance of the matter.