# Rakesh Kumar Chaturvedi v. State of U.P. & Anr

- **Citation:** (2025) 7 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-29
- **Case number:** Application U/S 528 BNSS No. 862 of 2025
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-chaturvedi-v-state-of-u-p-anr-53601
- **Pages:** 6

## Headnote

14 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for consideration
Whether notice issued to the applicant in a
complaint
before
taking
cognizance
is
against the statutory provision made under
Section
223
of
the
BNSS;validity
of
impugned order dated 10.02.2025 passed by
learned Additional Chief Judicial Magistrate-II,
Lucknow

Headnotes
Bharatiya
Nagarik
Suraksha
Sanhita,
2023-sec. 223, 226-After filing of complaint
u/s 210 BNSS-learned Magistrate has to first
examine upon oath the complainant and the
witnesses-such
examination
is
to
be
reduced
in
writing-signed
by
the
complainant and the witnesses and also by
the Magistrate -if he finds no sufficient
ground to proceed- he shall dismiss the
complaint u/s226 BNSS - if he finds that it
can not be dismissed -he shall afford
opportunity to the accused- for which the
notice of being heard shall be issued at that
stage
-only thereafter he would take
cognizance after affording him opportunity
of hearing-impugned order quashed-W.P.
allowed. (E-9)

Case Law Cited

## Text

7 All. Rakesh Kumar Chaturvedi Vs. State of U.P. & Anr.
13
governed by certain principles that
have been summarized in the judgment of
Calcutta High Court in State of West
Bengal
v.
Confederation
of
State
Government
Employees;
2019
SCC
Online Cal 9181. The relevant paragraph of
the judgment is quoted hereinbelow:

"On
a
reading
and
comprehension of the Supreme Court
judgments on this issue the following
principles emerges :-

A. The power to review is
inherent in the High Court and the High
Court can review its own order/judgment
passed in a writ petition.

B. This power of review is a
limited power and would be governed by
the principles of section 151 read with
Order 47 Rule 1 of the Code of Civil
Procedure.

C. Firstly, a Court can review its
own judgment when there is discovery of
new and important matter or evidence that
was in spite of exercise of due diligence not
within the knowledge or could not be
produced due to cogent reasons by the
party seeking a review. Secondly, the Court
may review its order or judgment on
account of some mistake or error apparent
on the face of the record. Thirdly, a
residuary clause in rule 1 of Order 47
provides for a review 'for any other
sufficient reason'. It is to be noted that the
Apex Court on several occasions has hold
that the third condition "for any other
sufficient reason" has to be read within the
four corners of the first to conditions.

D. An error which is not selfevident and has to be detected by a process
of reasoning is not an error apparent on
the face of the record.

E. A review petition has a limited
purpose and cannot be allowed to be "an
appeal in disguise". There is a sharp
distinction between an erroneous decision
that can be only appealed against and an
error apparent on the face of the record
that is subject to review.

[See Sasi (D through LRs v.
Aravindakshan Nair reported in (2017) 4
SCC 692. Haridas Das v. Usha Rani Banik
reported in (2006) 4 SCC 78, paras 15-18;
Parsion Devi v. Sumitri Devi reported in
(1997) 8 SCC 715, paras 7-10; Aribam
Tuleshwar Sharma v. Aribam Pishak
Sharma reported in (1979) 4 SCC 389,
para3]"

6. In view of the principles
enunciated above, the grounds in the
present review application neither fall
within the ambit of 'discovery of new and
important matter or evidence' nor within
'mistake or error apparent on the face of
record'.

7. The review application appears
to
be
an
appeal
in
disguise,
and
accordingly, the same is dismissed.
----------
(2025) 7 ILRA 13
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.07.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Application U/S 528 BNSS No. 862 of 2025

Rakesh Kumar Chaturvedi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Shantanu Sharma, Anshuman Sharma,
Athar Ali

Counsel for the Opposite Parties:
G.A.
14 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for consideration
Whether notice issued to the applicant in a
complaint
before
taking
cognizance
is
against the statutory provision made under
Section
223
of
the
BNSS;validity
of
impugned order dated 10.02.2025 passed by
learned Additional Chief Judicial Magistrate-II,
Lucknow

Headnotes
Bharatiya
Nagarik
Suraksha
Sanhita,
2023-sec. 223, 226-After filing of complaint
u/s 210 BNSS-learned Magistrate has to first
examine upon oath the complainant and the
witnesses-such
examination
is
to
be
reduced
in
writing-signed
by
the
complainant and the witnesses and also by
the Magistrate -if he finds no sufficient
ground to proceed- he shall dismiss the
complaint u/s226 BNSS - if he finds that it
can not be dismissed -he shall afford
opportunity to the accused- for which the
notice of being heard shall be issued at that
stage
-only thereafter he would take
cognizance after affording him opportunity
of hearing-impugned order quashed-W.P.
allowed. (E-9)

Case Law Cited
1. Prateek Agarwal Vs. State of U.P. and
Another, Application under Section 482 Cr.P.C.
No.10390 of 2024
2. Basanagouda R. Patil Vs. Shivananda S. Patil;
2024 SCC Online Kar 96
3. Suby Antony S/o Late P.D. Antony Vs. Judicial
First-Class Magistrate passed in Crl. MC 508 of
2025 .
List of Acts
Bharatiya Nagarik Suraksha Sanhita, 2023

List of Keywords
Cognizance, opportunity of hearing, recording
all the statements of the complainant and the
witnesses

Appearance of Parties:
Counsel for Applicant :- Shantanu Sharma,
Anshuman Sharma, Athar Ali
Counsel for Opposite Party :- G.A.

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Shantanu Sharma, learned
counsel for the applicant and Sri Anurag
Verma, learned A.G.A. for the State.

2. The instant application under
Section 528 of the Bharatiya Nagarik
Suraksha
Sanhita,
2023
(here-in-after
referred as BNSS) has been moved with a
prayer to quash/set aside the impugned
order dated 10.02.2025 passed by learned
Additional Chief Judicial Magistrate-II,
Lucknow in Misc. Case No.807/2025
alongwith notice i.e. Annexure No.1.

3.
Learned
counsel
for
the
applicant submits that the notice, which has
been issued to the applicant by means of
the impugned order dated 10.02.2025, is
against the statutory provision made under
Section 223 of the BNSS because before
taking cognizance, the notices can be
issued for affording the opportunity of
hearing, but only after recording all the
statements of the complainant and the
witnesses, if required. He relies on a coordinate Bench decision dated 26.11.2024
passed in Application under Section 482
Cr.P.C. No.10390 of 2024; Prateek
Agarwal Vs. State of U.P. and Another,
decision of the High Court of Karnataka
passed in the case of Basanagouda R.
Patil Vs. Shivananda S. Patil; 2024 SCC
Online Kar 96 and judgment rendered by
the High Court of Kerala at Ernakulam in
the case of Suby Antony S/o Late P.D.
Antony
Vs.
Judicial
First-Class
Magistrate passed in Crl. MC 508 of
2025 on 22.01.2025. Thus, the submission
of learned counsel for the applicant is that
the impugned notice is not sustainable
under law and liable to be quashed.

4. Learned A.G.A. for the State,
though opposed the prayer but he could not
contradict the legal position. He further
7 All. Rakesh Kumar Chaturvedi Vs. State of U.P. & Anr.
15
submits that the impugned notice may be
quashed and the matter may be remitted
back, so that the learned Magistrate may
proceed in accordance with law after
recording the statements of the complainant
and the witnesses and the respondent No.2
cannot be said to be prejudiced at this
juncture because his statement has still not
been recorded, to which, there is no
objection by learned counsel for the
applicant.

5.
Having
considered
the
submissions of learned counsel for the
parties and on perusal of record, it is
apparent that a complaint has been filed by
the respondent No.2 and without recording
any statement of the complainant or the
witnesses, a notice has been issued to the
applicant by means of impugned order
dated 10.02.2025.

6. Section 223 BNSS provides that
the 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. The
first proviso appended to the Section
provides that no cognizance of an offence
shall be taken by the Magistrate without
giving the accused an opportunity of being
heard. The second proviso appended to the
Section provides certain contingencies
under which, the Magistrate need not
examine the complainant and witnesses, if
complaint is in writing. The relevant
Section 223(1) BNSS is extracted here-inbelow:-

 "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)......"

7. In view of above, after recording
statement of the complainant and the
witnesses, if any, the Magistrate before
taking cognizance in the matter, shall
afford an opportunity of being heard to the
accused. It is for the reason that if upon
consideration of the statements and enquiry
got conducted, if any, the Court finds that
there is no sufficient ground to proceed, it
can dismiss the complaint under Section
226 BNSS, which is extracted here-inbelow:-

"226. Dismissal of complaint- If,
after considering the statements on oath (if
16 INDIAN LAW REPORTS ALLAHABAD SERIES
any) of the complainant and of the
witnesses and the result of the inquiry or
investigation (if any) under section 225, the
Magistrate is of opinion that there is no
sufficient ground for proceeding, he shall
dismiss the complaint, and in every such
case he shall briefly record his reasons for
so doing. Chapter XVII Commencement of
Proceedings before Magistrates."

8. In view of above, after filing of
complaint under Section 210 BNSS, the
learned Magistrate has to first examine
upon oath the complainant and the
witnesses, if any, and the substance of such
examination is to be reduced in writing,
which shall be signed by the complainant
and the witnesses and also by the
Magistrate as per Section 223(1) of BNSS,
thereafter, after considering the same, if he
finds that there is no sufficient ground to
proceed, he shall dismiss the complaint
under Section 226 BNSS and if he finds
that it can not be dismissed as such, he
shall afford opportunity to the accused for
which the notice of being heard shall be
issued at that stage and only thereafter he
would take cognizance after affording him
opportunity of hearing. It is because, if the
complaint is dismissed under Section 226
BNSS, the accused may not be harassed
unnecessarily
of
appearing
and
the
opportunity of hearing may not be a mere
formality and it should be with material,
which is required to be considered for
taking cognizance. 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.

9. A co-ordinate Bench of the High
Court of Karnataka has examined the legal
position with regard to Section 223 BNSS
and held that 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. The relevant paras are
being extracted hereinbelow:-

"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
7 All. Rakesh Kumar Chaturvedi Vs. State of U.P. & Anr.
17
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."

10. A co-ordinate Bench of this
Court has taken similar view and after
considering the aforesaid judgment of the
Karnataka High Court, has allowed
petition filed under Section 482 Cr.P.C.
in the case of Prateek Agarwal (Supra).
Similar view has been taken by the High
Court of Kerela at Ernakulam in the case
of Suby Antony S/o Late P.D. Antony
(Supra).

11. Adverting to the facts of the
present case, it is apparent that notices
have been issued to the applicant without
recording
the
statements
of
the
complainant and witnesses, which is
against the prescribed procedure under
the the BNSS, therefore, this Court is of
the view that the impugned order is not
sustainable in the eyes of law. 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.

12.
Since
the
prescribed
procedure has not been followed and the
statements of the respondent No.2 and
witnesses still have not been recorded, it
cannot be said that he will be prejudiced
by quashing of the impugned order dated
10.02.2025 and the notice because after
recording
the
statements
of
the
complainant and the witnesses, the Court
can issue notice to the accused in
accordance
with
law
before
taking
cognizance in the matter. Thus, notice to
respondent No.2 is dispensed with.

13. The application is allowed.
The impugned order dated 10.02.2025
passed by learned Additional Chief
Judicial Magistrate-II, Lucknow in Misc.
Case No.807/2025 is hereby quashed.

14. The trial court shall proceed
to record statements of the complainant
and witnesses and proceed accordingly in
accordance with law and the observations
made here-in-above.
---------
18 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 7 ILRA 18
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.07.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 5309 of 2025

Waseem @ Mohammad Waseem
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Avinash Shukla, Jyoti Tripathi

Counsel for the Opposite Parties:
G.A.

Issue for consideration
Pertains to Criminal proceedings u/s 366, 376
IPC and under POCSO Act if consented relation
and age of victim is about 18 years.

Headnotes
Indian Penal Code-sec.363, 366, 376;
Protection
of
Children
from
Sexual
Offences Act, 2012-sec. 3/4-Victim at the
time
of
incidence-aged
about
18
yearsstatement u/s 164 Cr.P.C.-victim stated her
consent-want to marry the accused-crime
against society-but victim's welfare-as she
wants to marry the accused-and is residing with
him as his wife since past one and half yearsproceedings quashed. Application allowed.
(E-9)
Case Law Cited
1. Kapil Gupta vs. State (2022) SCC pg 44
2. Narendra Singh vs. State of Punjab (2014) 6
SCC 466
List of Acts
1. Indian Penal Code, 1860
2. Protection of Children from Sexual Offences
Act, 2012
Appearance for parties-
Counsel for Applicant :- Avinash Shukla,Jyoti
Tripathi,
Counsel for Opposite Party :- G.A

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. विपक्षीगण की तरफ से एक लघु
प्रततशपथ पत्र प्रस्तुत ककया गया, जिसे अभिलेख
पर भलया िाता है।

2. प्राथी के विद्िान अधििक्ता श्री
अविनाश शुक्ला तथा विद्िान अपर शासकीय
अधििक्ता श्री दििाकर भसिंह एििं विपक्षी सिंख्या
2 तथा 3 के विद्िान अधििक्ता श्री अिीत
कुमार को सुना तथा पत्रािली का अिलोकन
ककया।

3. िारा 482 िण्ड प्रकिया सिंदहता के
अन्तगगत प्रस्तुत इस प्राथगना पत्र द्िारा प्राथी ने
प्रथम सूचना ररपोर्ग सिंख्या 106 सन् 2022
अन्तगगत िारा 363, 366, 376 िा०ििं०सिं० एििं
लैंधगक
अपरािों
से
बालकों
का
सिंरक्षण
अधितनयम की िारा 3/4, थाना अदहरौली,
िनपि-अम्बेडकर नगर के अनुिम में प्रस्तुत
आरोप पत्र दिनािंककत 25.06.2022 तथा उक्त
के आिार पर उत्पन्न आपराधिक िाि सिंख्या
408 सन् 2022 के अनुिम में विद्िान मुख्य
न्यायािीश, लैंधगक अपरािों से बालकों का
सिंरक्षण अधितनयम, अम्बेडकर नगर द्िारा
पाररत आिेश दिनािंक 09.09.2022, जिससे
उक्त अपराि का सिंज्ञान भलया एििं प्राथी को
विचारण के भलए तलब ककया गया, के
तनरस्तीकरण की प्राथगना इस आिार पर की
गई है कक पक्षों के मध्य समझौता हो गया
है।