# Prateek Agarwal v. State of U.P. & Anr - **Citation:** (2024) 12 ILRA 819 - **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-51358 - **Pages:** 5 ## Headnote A. Criminal Law - Criminal Procedure Code,1973-Section 482-Indian Penal Code,1860-Sections 302 & 328-quashing of order-trial court issued a notice to the applicant without following proper procedure, specifically without recording the statements of the complainant and witnesses as required u/s 223 of the B.N.S.S. 2023, vitiates the issuance of notice to the accused and subsequent proceedings-Such procedural irregularity is a valid ground for invoking the inherent powers u/s 482 Cr.PC.-a Magistrate cannot take cognizance of a complaint without giving the accused an opportunity to be heard- the accused must be provided with copies of the complaint, sworn statements, and witness statements to prepare a response-Reliance was placed on a Karnataka High Court ruling which clarified the procedure u/s 223 BNSS emphasizing that recording statements 820 INDIAN LAW REPORTS ALLAHABAD SERIES before issuing notice is mandatory-The impugned orders were set aside.(Para 1 to 10) B. 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.(Para 10) The application is allowed. (E-6) List of Cases cited: Sri Basanagouda R. Patil Vs Shri Shivananda S. Patil, Crl. Petition No. 7526 of 2024 ## Text 12 All. Prateek Agarwal Vs. State of U.P. & Anr. 819 evidence of any other witness to show that there was meeting of minds amongst respondent nos. 2 and 3 and other accused persons who are facing trial in the case to commit the offence. In so far as the FIR version which has been recorded by P.W. 1 in his sworn testimony before the court which has been formed basis of moving an application under section 319 Cr.P.C. against respondent nos. 2 and 3 there is only allegation against respondent nos. 2 and 3 that they were inimical to the deceased Abhishek @ Prince and they have lodged a false case against him at police station concerned which were being inquired into at the time of incident. 19. The allegations/ acquisitions made in the FIR or evidence of witness cannot form an evidence of conspiracy unless there is some evidence of conspiracy which comes under purview of section 10 of Evidence Act to connect the proposed accused with the other accused persons who are projected as perpetuates of crime in the case. Allegation cannot form basis of prove and learned trial court has rightly declined to issue process against respondent nos. 2 and 3 in this case for want of requisite evidence against them as additional accused in exercise of power under section 319 Cr.P.C. 20. In fact only allegation against them in FIR as well as in statement of P.W. 1 there is no material whatsoever at record to connect respondent nos. 2 and 3 with the offence which is being tried. 21. Consequently, I find no illegality irregularity or perversity in the impugned order passed by learned trial court while dismissing the application under section 319 Cr.P.C. filed by the informant/revisionist to summon the respondent nos. 2 and 3 under section 319 Cr.P.C. The revision is devoid of merit and deserves to be dismissed. 22. The revision is hereby dismissed. ---------- (2024) 12 ILRA 819 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 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. A. Criminal Law - Criminal Procedure Code,1973-Section 482-Indian Penal Code,1860-Sections 302 & 328-quashing of order-trial court issued a notice to the applicant without following proper procedure, specifically without recording the statements of the complainant and witnesses as required u/s 223 of the B.N.S.S. 2023, vitiates the issuance of notice to the accused and subsequent proceedings-Such procedural irregularity is a valid ground for invoking the inherent powers u/s 482 Cr.PC.-a Magistrate cannot take cognizance of a complaint without giving the accused an opportunity to be heard- the accused must be provided with copies of the complaint, sworn statements, and witness statements to prepare a response-Reliance was placed on a Karnataka High Court ruling which clarified the procedure u/s 223 BNSS emphasizing that recording statements 820 INDIAN LAW REPORTS ALLAHABAD SERIES before issuing notice is mandatory-The impugned orders were set aside.(Para 1 to 10) B. 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.(Para 10) The application is allowed. (E-6) List of Cases cited: Sri Basanagouda R. Patil Vs Shri Shivananda S. Patil, Crl. Petition No. 7526 of 2024 (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 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 12 All. Prateek Agarwal Vs. State of U.P. & Anr. 821 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 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 822 INDIAN LAW REPORTS ALLAHABAD SERIES 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 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." 12 All. Sumit Punjabi @ Sumit Arora Vs. State of U.P. & Anr. 823 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) 12 ILRA 823 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.12.2024 BEFORE THE HON'BLE VINOD DIWAKAR, J. Application U/S 482 No. 18360 of 2024 Sumit Punjabi @ Sumit Arora ...Applicant Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicant: Ajay Nand Pandey, Shravana Kumar Yadav, Syed Imran Ibrahim Counsel for the Opposite Parties: G.A. A. Criminal Law - U.P. Gangsters and Anti-Social Activities(Prevention) Act,1986 - U.P. Gangsters and AntiSocial Activities(Prevention) Rules 2021- Rule 24-quashing of proceedings- non-compliance with Rule 24-Charge sheet was filed after 21 months and 2 days violating Rule 24 which mandates investigation completion within six months-Ten investigating officers handled the case but none adhered to the procedural requirements-Held, A strict departmental inquiry was directed against the investigating officers-the police were granted the liberty to prepare a fresh gang chart in compliance with the Rule.(Para 1to 15) B. Rule 24 mandates that an investigation must be completed within six months from the date of registration of FIR-A maximum extension of three months is allowed with approval but in no case can the investigation extend beyond one year.(Para 6) The application is disposed of. (E-6) (Delivered by Hon'ble Vinod Diwakar, J.) 1. Heard learned counsel for applicant and learned AGA for the State. 2. Through the instant proceedings, the applicant has challenged the cognizance/summoning order dated 10.04.2024 on a limited ground that the Rules framed under the Provisions of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 have not been complied with by the police. 3. Thus, the learned counsel for the applicant submits that; (i) besides Rules 16 and 17 of the Rules 2021, Rule 24 for expeditious investigation has been violated, (ii) the FIR was registered on 29.4.2022, whereas the charge sheet was filed on 3.2.2024 almost after a delay of 21 months and two days, (iii) the applicant is a businessman and he is arrayed as an accused in the base case on the basis of confessional statement of co-accused, which is impermissible under the law, (iv) the applicant's arrest was stayed by this Court vide order dated 1.8.2022, on Court's prima facie, satisfaction that the applicant is innocent and has been arrayed as an accused by the police because of ulterior reasons.