Shashi Shekhar, Chief Editor Hindustan Daily Newspaper and Another Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:109970

Court No. - 75

Case :- APPLICATION U/S 528 BNSS No. - 13182 of 2025

Applicant :- Shashi Shekhar, Chief Editor Hindustan Daily Newspaper And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Mishra Counsel for Opposite Party :- G.A.,Kamlesh Kumar Singh,Subhash Chandra Vishwakarma

¶5

Hon'ble Vikas Budhwar,J.

¶6

Heard Sri Ashish Mishra learned counsel for the applicants and Sri J.P. Gupta, learned AGA for the State and Sri Kamlesh Kumar Singh, learned counsel for the opposite party no.2.

¶7

A joint statement has been made by the learned counsel for the parties that they do not propose to file further affidavit and the application be decided on the basis of the documents available on record.With the consent of the parties, the application is being decided at the fresh stage.

¶8

The case of the applicant is that a complaint stood preferred by the opposite party no.2 against the applicants a purported to be under Sections 356(4) B.N.S. 2023 and Section 4/6 of the Indecent Representation of Women (Prohibition) Act, 1986 on 25.7.2024. Post lodging of the said complaint the court of A.C.J.M.-15, Prayagraj proceeded to pass the following orders:-

¶9

"In The Court of ACJM 15, Prayagraj

¶10

Misc. Case No. /2015

¶11

Smt. Vandana Singh - Bureau Chief Hindustan News Paper &Other

¶12

P/S Civil Lines, Prayagraj

¶13

25/7/24 Complaint filed today. Registered the complaint as misc. case. Issue notice to opposite parties. Complainant to take steps. Fix 27/8/24 for further order.

¶14

27/8/24 P.O. on leave issue previous process Fix 22/9/24

¶15

22/9/24 Sunday

¶16

23/9/24 Called out. Ld. Counsel for complainant present. O.P. is directed to appear & file objections (if any). Fix 09/10/24

¶17

09/10/24 Called out. Ld. Counsel for complainant present. O.P. is given an opportunity to file objections (if any) and for hearing.

¶18

Fix 15/11/24

¶19

15/11/24 O.P. is directed to comply previous order. Fix 17/12/24.

¶20

17/12/24 Called out. O.P. is given last opportunity to file objection (if any).

¶21

Put up on 03/1/25.

¶22

03/1/25 Called out. Ld. Counsel for complainant present. On previous date, last opportunity was given to O.P. to file objection but none has appeared neither any objections filed.

¶23

Thus, on the basis of the above, the present miscellaneous application is liable to be registered as complaint.

¶24

Order

¶25

This misc. application be registered as complaint case. Complainant is directed to appear for her statement u/s 223 of BNSS."

¶26

Questioning the procedure adopted by the court of A.C.J.M.-15, Prayagraj in issuing processes without recording of the statement of complainant and other witness and the further proceedings so sought to be initiated there from the present application has been filed.

¶27

Learned counsel for the applicants has submitted that prior to the issuance of the notice to the accused applicants, it is obligatory on the part of the court below to have recorded the statement of the complainant as well as the witnesses and thereafter copy of the complaint as well as the statement of the complainant and other witnesses taken on oath were to be provided to the applicant accused along with the notice and in the present case no such procedure has been adopted, however, rather to the contrary only the complaint so lodged by the opposite party no.2 has been forwarded with the notice to the applicant to set forth his reply. He has further submitted that the said procedure is not provided under Section 223 of the B.N.S.S., 2023 and he seeks to rely upon the judgement of the Karnataka High Court in Criminal Petition No.7526 of 2024, Sri Basanagouda R. Patil (Yatnal) Vs. Sri Shivananda S. Patil decided on 27.9.2024 as well as the judgement of the High Court of Kerala at Ernakulam in CRL.MC No.508 of 2025 Suby Antony Vs. R1 (Deleted) decided on

¶28

22.1.2025 and also a coordinate Bench judgment of this Court in Prateek Agarwal vs. State of U.P. and another Application U/S 482 No.10390 of 2024 decided on 26.11.2014 . He has thus submitted that the entire procedure so sought to be adopted by the court below without recording the statements of the complainant and other witnesses taken on oath and accompanied with the complaint giving an opportunity to the applicants-accused to set forth its reply goes to the root of the matter making the entire proceedings vitiated. He has also submitted that the order be set aside matter be remitted back to the court below to adopt the correct procedure as enunciated under Section 223 of the B.N.S.S.

¶29

Sri Kamlesh Kumar Singh, who appears for the opposite party no.2 and learned AGA while countering the submissions of the learned counsel for the applicants have submitted that whatever might be no prejudice whatsoever is being caused as much water has flown as post issuance of the process by virtue of the order dated 25.7.2024 and 27.8.2024 despite several opportunities is being accorded to the applicants to submit their objections now by virtue of the order dated 3.1.2025 the complaint has been registered. Learned counsel for the opposite party no.2 also seeks to rely upon the provisions contained under Section 222(3) of the B.N.S.S. He however, could not dispute the fact that the law is well crystalized in view of the judgments in Sri Basanagouda (supra), Suby Antony (supra) and Prateek Agarwal (supra) that prior to the issuance of the notice to the accused it is obligatory on the part of the court below to record the statements of the complainant witness and thereafter the copy of the complaint and the statement of the complainant and the witness are to be provided to the accused along with the copy of complaint so as to give him opportunity to rebut and file its objection. They submit that the order be set aside, matter be remitted back in that regard so as to facilitate disposal of the proceedings in time bound manner.

¶30

I have heard the submissions so made across the bar and perused the record carefully.

¶31

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

¶32

"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

¶33

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:

¶34

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."

¶35

The issue with regard to a mandatory exercise to be undertaken by the court below to record the statements of the complainant as well as the witness and thereafter the copy of the complaint as well as the statement of the complainant and other witnesses taken on oath are to be provided to be accused along with the notice so as to enable and grant an opportunity to the accused to submit his reply is no more res integra as in Sri Basanagouda (supra) the following was observed:-

¶36

" 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 7 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.

¶37

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.

¶38

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 8 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

¶39

procedure thereafter.

¶40

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 subsection (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.

¶41

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

¶42

"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."

¶43

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.

¶44

13. For the aforesaid reasons the following: ORDER

¶45

(i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. 10 (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."

¶46

The aforesaid proposition law came to be reiterated by this Court in Prateek Agarwal (supra) . Yet Kerala High Court in Suby Antony (supra) followed the judgement Sri Basanagouda (supra) and in para 7 held as under:-

¶47

7. Indeed, a radical change in procedure is brought about by the proviso to Section 223(1) of BNSS. Pertinently, in spite of the proviso to Section 223(1) making it mandatory to provide opportunity of hearing to the accused before taking cognisance, 2025:KER:6236 Section 226 does not reckon the accused's objection at the stage of taking cognisance as a relevant factor for dismissing the complaint. Being guided by the precedents on Sections 200 and 202 of the Code and the plain language of the proviso to Section 223(1) of the BNSS, this Court is of the opinion that , after the complaint is filed, the Magistrate should first examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognisance of the offence/s, opportunity of hearing should be afforded to the accused."

¶48

Bearing in mind the provisions of Section 223 of the B.N.S.S. 2023 as well as the law laid down in the above noted decision irresistible conclusion stands drawn that before issuing process, it is incumbent upon the Court on receipt of the complaint to get the

¶49

statements of the complainant and other witnesses recorded on oath and thereafter the said statements along with the copy of the complaint and relevant documents be sent along with notice to the accused to enable him to tender his objection at pre-cognizance. Since the aforesaid exercise is lacking and the process was issued without recording the statements of the witnesses thus inherent error crept in which goes to the root of the matter.

¶50

Accordingly, the application stands disposed of in the following terms:-(a) the orders issuing process and consequential orders are set aside (b) the court below shall undertake necessary exercise as mandated under the provisions of Section 223 BNSS and judgements of Sri Basanagouda (supra), Suby Antony (supra) and Prateek Agarwal (supra).

¶51

At this stage, learned counsel for the applicants submits that a direction be issued for conclusion of the proceedings in a time bound manner. It is expected that the Court shall undertake the proceedings and give it a logical end strictly in accordance with law with most expedition.

¶52

The applications stand disposed of .

¶53

Order Date :- 10.7.2025 piyush

¶54

Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad

Shashi Shekhar, Chief Editor Hindustan Daily Newspaper and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Shashi Shekhar, Chief Editor Hindustan Daily Newspaper and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases