# Prateek Agarwal v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-26
- **Case number:** Application U/S 482 No. 10390 of 2024
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prateek-agarwal-v-state-of-u-p-anr-51093
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 209-A & 482 -
The Indian Penal Code, 1860 - Sections
302 & 328 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 210 & 223(1) -
Application u/s 482 - for quashing entire
criminal proceedings - FIR - offence of murder -
police filed final report - complainant filed
protest petition - which was treated as
complaint case - issue notices - examination of
complainant - court finds that, trial court issue
notices without recording the St.ment of
complainant as well as witnesses - held, in light
of judgment and order passed in case of Sri
Basangouda R. Patil Vs Sri Shivananda S. Patil -
impugned order is in violation of the provision of
Section 223 of BNSS - hence, application is
allowed - matter is remitted back to the learned
Magistrate to pass fresh order after recording
the St.ment of the complainant as well as
witnesses. (Para - 6, 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

Shri Basanagouda R. Patil Vs Shri Shivananda S.
Patil - Criminal Petition No. 7526/2024 Dated
27.09.2024 passed by Hon'ble High Court of
Karnataka.

## Text

11 All. Prateek Agarwal Vs. State of U.P. & Anr.
527
(2024) 11 ILRA 527
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.11.2024

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482 No. 10390 of 2024

Prateek Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ayush Singh, Rudra Pratap Singh, Sushil
Kumar Singh

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161, 164, 209-A & 482 -
The Indian Penal Code, 1860 - Sections
302 & 328 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 210 & 223(1) -
Application u/s 482 - for quashing entire
criminal proceedings - FIR - offence of murder -
police filed final report - complainant filed
protest petition - which was treated as
complaint case - issue notices - examination of
complainant - court finds that, trial court issue
notices without recording the St.ment of
complainant as well as witnesses - held, in light
of judgment and order passed in case of Sri
Basangouda R. Patil Vs Sri Shivananda S. Patil -
impugned order is in violation of the provision of
Section 223 of BNSS - hence, application is
allowed - matter is remitted back to the learned
Magistrate to pass fresh order after recording
the St.ment of the complainant as well as
witnesses. (Para - 6, 9, 10, 11)

Application Allowed. (E-11)

List of Cases cited:

Shri Basanagouda R. Patil Vs Shri Shivananda S.
Patil - Criminal Petition No. 7526/2024 Dated
27.09.2024 passed by Hon'ble High Court of
Karnataka.

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Sri Sushil Kumar Singh,
learned counsel for the applicant and Sri
Alok Kumar Tiwari, learned A.G.A. for the
State.

2. The present application under
Section 482 Cr.P.C. is filed with the prayer
to quash the impugned order dated
8.11.2024 passed by the Sessions Judge,
Sitapur, in Criminal Revision No.Nil/2024
(C.I.S.S.
No.187/2024,
Case
Crime
No.460/2023, under Sections 302, 328
I.P.C., Police Station Kotwali, District
Sitapur) as well as the order dated
15.10.2024, passed by the Chief Judicial
Magistrate, Sitapur.

3. With the consent of learned A.G.A.,
present application under Section 482
Cr.P.C. is being decided finally.

4. Learned counsel for the applicant
submits that the applicant was falsely
implicated in the present case, as no
evidence
was
found
after
detail
investigation final report was submitted by
the Investigating Officer. He further
submits that protest petition was filed by
the complainant of the present case, which
was treated as a complaint case by the
learned trial court on 15.10.2024 under
Section 210 of B.N.S.S., 2023 and notice
was issued to the accused person/applicant
under the provisions of proviso (1) of
Section 223 of B.N.S.S.

Learned counsel for the applicant
submits that prior to the issuance of notice
to the accused/applicant, it was obligatory
on the part of the learned court below to
528 INDIAN LAW REPORTS ALLAHABAD SERIES
record the statement of the complainant as
well as witnesses and thereafter, copy of
the complaint as well as statement of
complainant and other witnesses taken on
oath were to be provided to the accused
annexing the notice, but in the present case,
statement was not recorded, and therefore,
impugned order is bad in the eyes of law.
Relying on the decision of Karnataka High
Court passed in Criminal Petition No.7526
of 2024 (Sri Basanagouda R. Patil Vs. Sri
Shivananda S. Patil) learned counsel for
the applicant requests for kind indulgence
of this Court.

5. Learned A.G.A. opposes the prayer
of the applicant and submits that statement
can be recorded after appearance of the
accused/applicant however, he does not
dispute the intentions of the Section 223 of
B.N.S.S.
as
well
as
the
legal
pronouncement of the High Court of
Karnataka in the aforesaid case.

6. Considering the arguments of
learned counsel for the parties, going
through the record of the application as
well as other relevant documents, it is
evident that a protest petition was filed by
the complainant of the present case, which
was treated as a complaint case by the trial
court on 15.10.2024 under Section 210 of
B.N.S.S., 2023. It is also evident that at the
moment, the complaint was registered, the
trial court, before recording the statement
of complainant as well as witnesses, issued
notice to the accused/applicant, which is
erroneous.

7. Section 223 of B.N.S.S. reads as
under :-

"223.
Examination
of
complainant. - (1) A Magistrate having
jurisdiction while taking cognizance of an
offence on complaint shall examine upon
oath the complainant and the witnesses
present, if any, and the substance of such
examination shall be reduced to writing
and shall be signed by the complainant and
the witnesses, and also by the Magistrate:

Provided that no cognizance of
an offence shall be taken by the Magistrate
without giving the accused an opportunity
of being heard:

Provided further that when the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses -

(a) if a public servant acting or
purporting to act in the discharge of his
official duties or a Court has made the
complaint; or

(b) if the Magistrate makes over
the case for inquiry or trial to another
Magistrate under section 212:

Provided
also
that
if
the
Magistrate makes over the case to another
Magistrate
under
section
212
after
examining
the
complainant
and
the
witnesses, the latter Magistrate need not
re-examine them:

(2) A Magistrate shall not take
cognizance on a complaint against a public
servant for any offence alleged to have
been committed in course of the discharge
of his official functions or duties unless -

(a) such public servant is given
an opportunity to make assertions as to the
situation that led to the incident so alleged;
and

(b) a report containing facts and
circumstances of the incident from the
officer superior to such public servant is
received."

8. Proviso of Sub Section (1) of
Section 223 of the B.N.S.S. mandates that a
Magistrate while taking cognizance of an
offence, on a complaint, shall examine
11 All. Prateek Agarwal Vs. State of U.P. & Anr.
529
upon oath, the complainant and the
witnesses present, if any, and reduce it into
writing. The Proviso further mandates that
no cognizance of an offence shall be taken
by the Magistrate without giving an
opportunity to the accused of being heard.
Section 227 of the B.N.S.S. deals with the
issuance of process which is akin to Section
204 of the Cr.P.C.

9. Relevant part of the order dated
27.9.2024 passed in Criminal Petition
No.7526 of 2024 (Sri Basanagouda R.
Patil Vs. Sri Shivananda S. Patil) passed
by High Court of Karnataka is as under:-

"8. The obfuscation generated in
the case at hand is with regard to
interpretation of Section 223 of the BNSS,
as to whether on presentation of the
complaint, notice should be issued to the
accused,
without
recording
sworn
statement of the complainant, or notice
should be issued to the accused after
recording the sworn statement, as the
mandate of the statute is, while taking
cognizance of an offence the complainant
shall be examined on oath. The proviso
mandates that no cognizance of an offence
shall be taken by the Magistrate without
giving the accused an opportunity of being
heard.

9. To steer clear the obfuscation,
it is necessary to notice the language
deployed therein. The Magistrate while
taking cognizance of an offence should
have with him the statement on oath of the
complainant and if any witnesses are
present, their statements. The taking of
cognizance under Section 223 of the BNSS
would come after the recording of the
sworn statement, at that juncture a notice is
required to be sent to the accused, as the
proviso mandates grant of an opportunity
of being heard.

10. Therefore, the procedural
drill would be this way:

A complaint is presented before
the Magistrate under Section 223 of the
BNSS; on presentation of the complaint, it
would be the duty of the Magistrate /
concerned
Court
to
examine
the
complainant on oath, which would be his
sworn statement and examine the witnesses
present if any, and the substance of such
examination
should
be
reduced
into
writing.
The
question
of
taking
of
cognizance would not arise at this juncture.
The magistrate has to, in terms of the
proviso, issue a notice to the accused who
is given an opportunity of being heard.
Therefore, notice shall be issued to the
accused at that stage and after hearing the
accused, take cognizance and regulate its
procedure thereafter.

11. The proviso indicates that an
accused should have an opportunity of
being heard. Opportunity of being heard
would not mean an empty formality.
Therefore, the notice that is sent to the
accused in terms of proviso to sub-section
(1) of Section 223 of the BNSS shall append
to it the complaint; the sworn statement;
statement of witnesses if any, for the
accused to appear and submit his case
before taking of cognizance. In the
considered view of this Court, it is the clear
purport of Section 223 of BNSS 2023.

12. Swinging back to the facts of
the case the concerned Court has passed
the following order:

"This complaint is filed against
the
Accussed
alleging
the
offence
P/U/Sec.356(2) of BNS, 2023.

Issue notice to the Accused as per
proviso to section 223 of BNSS, 2023.

For hearing.

Call on 13.08.2024."

The moment complaint is filed,
notice is issued to the accused. This
530 INDIAN LAW REPORTS ALLAHABAD SERIES
procedure is erroneous. Therefore, the
petition deserves to succeed on this short
ground of procedural aberration and the
matter is to be remitted back to the hands
of the concerned Court to redo the exercise
from the beginning, bearing in mind the
observations made in the course of the
order.

13. For the aforesaid reasons the
following:

ORDER

(i) Criminal Petition is allowed.

(ii) Impugned order dated 16-072024 passed by the XLII Additional Chief
Judicial Magistrate, Bengaluru in PCR
No.9136 of 2024 stands quashed.

(iii) Matter is remitted back to the
learned Magistrate to redo the exercise
afresh, from the stage of entertainment of
the complaint, bearing in mind the
observations made in the course of the
order.

(iv) The said exercise shall be
undertaken within 4 weeks from the date of
receipt of the copy of this order.

Consequently, I.A.No.2 of 2024
stands disposed."

10. In view of the above facts and
discussions, present application is allowed.
The impugned order dated 15.10.2024 is in
violation of the provision of Section 223 of
B.N.S.S., and therefore, the same is hereby
set aside.

11. The Chief Judicial Magistrate,
Sitapur is directed to pass fresh order after
recording the statement of the complainant
as well as witnesses of the present case.
---------
(2024) 11 ILRA 530
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.11.2024

BEFORE

THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Matters Under Article 227 No. 9750 of 2023
(Criminal)

Babbar @ Pabbar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Romeshwari Prasad

Counsel for the Respondents:
G.A.,
Sri
Vinay
Kumar
Pandey,
Sri
Himanshu Srivastava

Civil Law - Constitution of India,1950 -
Article
227
-

Criminal
Procedure
Code,1973 - Sections - 145 & 146: - Misc.
Petition - challenge to the impugned order -
petitioner in peaceful possession over the land
in question for 40-50 years - respondent no. 4
initiates proceedings u/s 145/146 Cr.P.C. for
forcible possession - objection raised, citing
pending civil suit - no likelihood of breach of
peace - impugned proceedings alleged as an
attempt to harass the petitioner - SDM directs
attachment and custody takeover - Criminal
Revision - dismissed - Misc. Petition - court
observes - respondent no. 4 not impleaded as a
defendant in civil suit - no ad-interim injunction
in petitioner's favour - held, relying on case law
of Hon'ble Supreme Court in Amresh Tiwari's
case, no illegality in impugned order - petition
dismissed. (Para - 7, 8, 9)

Misc. Petition Dismissed. (E-11)

List of Cases cited:

Amresh Tiwari Vs Lalta Prasad Dubey & anr.
(2000 vol. 4 SCC 440).

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Romeshwari Prasad,
learned counsel for the petitioners, Sri