'Clear Embargo On Taking Cognizance Without Hearing Accused': Patna High Court Quashes Cognizance Order, Calls Violation Of Section 223(1) BNSS A Serious Legal Infirmity

A Single Judge Bench of Justice Smt. Soni Shrivastava was hearing a petition filed under Section 482 CrPC, initially seeking quashing of an FIR registered as Kadamkuan P.S. Case No. 281 of 2023 for offences including criminal intimidation, assault, extortion, house-trespass, forgery, cheating and conspiracy, along with an offence under the IT Act.

During the pendency of the petition, the police submitted a final form on 30.04.2024, finding the allegations in the FIR to be untrue. The final form was accepted by the competent court on 16.12.2024. On the same date, the protest petition filed by the complainant was treated as a complaint. After recording the complainant's statement and examining two inquiry witnesses under Section 202 CrPC, the Magistrate took cognizance against the petitioner under Section 384 IPC and issued summons on 05.05.2025.

The petitioner subsequently challenged the cognizance order in the pending Section 482 proceedings. The respondents objected to the maintainability of the challenge, contending that the original challenge to the FIR had become infructuous after acceptance of the final form and that the subsequent cognizance order arising from the protest petition ought to have been challenged through a separate proceeding.

The High Court observed that ordinarily a subsequent cognizance order ought to be challenged separately. However, in the peculiar facts of the case, it found that insisting upon a fresh proceeding would serve no useful purpose.

The Court noted that the protest petition had been filed within a month of registration of the FIR, the Section 482 petition had remained pending for a considerable period, notice had already been issued and proceedings had been stayed. It also noted that the complaint was verbatim the same as the complaint forming the basis of the FIR. The Court therefore proceeded to examine the subsequent cognizance order.

A significant defect identified by the Bench was that the petitioner had not been given any notice or opportunity of hearing before cognizance was taken. The High Court had called for a report from the Magistrate specifically on whether notice had been issued to the accused before cognizance. The Magistrate's report dated 10.09.2026 confirmed that no such notice had been issued.

The Court rejected the argument that the proviso to Section 223(1) BNSS was inapplicable because the protest petition had originally been filed before the BNSS came into force and was treated as a complaint only subsequently. Relying upon the Supreme Court's decision in Kushal Kumar Agarwal v. Enforcement Directorate, the Bench held that the proviso to Section 223(1) BNSS places a “clear embargo” upon the Court taking cognizance without first giving the accused an opportunity of hearing.

The Court noted that the safeguard had been incorporated in accordance with the principles of natural justice. It held that denial of this statutory right was not a mere procedural irregularity but constituted a “serious legal infirmity” affecting the validity of the cognizance order. The Court nevertheless proceeded to examine whether the prosecution could survive on merits.

The petitioner contended that the criminal proceedings were malicious and arose from circumstances surrounding an investigation being conducted by the Delhi Police in connection with Parliament Street P.S. Case No. 27 of 2022. The petitioner was alleged to have instructed Delhi Police officials to visit and ransack the office of the complainant's husband, although the petitioner was admittedly in Mumbai at the relevant time.

The High Court found the allegations against the petitioner to be far-fetched. It noted that the complaint itself disclosed that Delhi Police had visited the premises in connection with their investigation in the Delhi case, while the petitioner was not present at the alleged place of occurrence.

The Court also observed that the complaint did not even contain the essential allegations necessary to constitute extortion. The ingredients of the offence: intentionally putting a person in fear of injury and thereby dishonestly inducing delivery of property or valuable security, were not disclosed from the allegations. The Bench further noted that the two inquiry witnesses examined by the Magistrate were interested witnesses: one was the husband of the complainant and the other was his staff member.

In view of these circumstances, the Court held that there was no need merely to remand the matter to the Magistrate for compliance with the hearing requirement under Section 223(1) BNSS. The Court examined the material itself and found that the allegations did not disclose the commission of an offence against the petitioner.

The Bench characterised the complaint as “vexatious” and “distinctly attended with malafide”, finding that continuation of the criminal proceedings would amount to an abuse of the process of law.

The Court ultimately held that the cognizance order dated 05.05.2025 suffered from a serious legal infirmity both because the statutory requirement of hearing the accused before cognizance had not been followed and because the prosecution itself was found to be frivolous, malicious and vexatious.

Accordingly, the High Court allowed the petition and quashed the impugned criminal proceedings against the petitioner.

Appearance:

For the Petitioner: Mr. Navjot Yeshu, Advocate; Mr. Rishi Raj Raman, Advocate

For the State: Mr. Chandra Sen Prasad Singh, APP

For the Opposite Party No. 2: Mr. Asshar Mustaffa, Advocate