The Delhi High Court on Tuesday ruled that in a private complaint, the magistrate court can take cognisance of an offence only after examining the complainant and the witnesses on oath and giving an opportunity of hearing to the accused. .A Division Bench of Justices Navin Chawla and Ravinder Dudeja said that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the examination of the complainant and the witnesses and hearing the accused are steps prior to taking cognisance of the offence. In a detailed order, the Court also answered the question as to what stage the magistrate is required to issue notice to the accused in compliance with the first proviso to Section 223(1) of the BNSS. “The Magistrate is required to issue a notice to the accused, in compliance with the first proviso to Section 223(1) of the BNSS, after examining the complainant and the witnesses present on oath, unless exempted, and forming a prima facie opinion that the complaint does not deserve to be dismissed under Section 226 of the BNSS but cognizance may deserve to be taken of the offence,” it said. .The Court returned these findings while deciding references arising from two petitions. The Division Bench was called upon to settle the stage at which cognisance is taken in a private complaint under the BNSS and when notice must be issued to the proposed accused. .After considering the arguments, the Court said that unlike Section 200 of the Code of Criminal Procedure (CrPC), Section 223 BNSS provides that no cognisance can be taken without giving the accused an opportunity of being heard. It held that the examination of the complainant and witnesses is part of the process leading to cognisance, rather than a step occurring after cognisance as under the CrPC. The court also rejected the argument that magistrates should have discretion to issue notice either before or after recording the complainant’s statement. It held that where examination is statutorily required, notice would ordinarily have greater meaning after the statements have been recorded, enabling the proposed accused to make an effective representation. “The legislature clearly wanted to divert from the earlier position under the CrPC where the accused did not have a right to be heard at that stage, and faced a prolonged trial which was bound to fail. The accused can now show to the Magistrate that even taking the complaint and the statements of the complainant and the witnesses at their face value, the complaint does not disclose an offence; this is the limited right now conferred on the accused, but it must be fully granted,” the Court underscored. .Advocates Rakesh Malhotra, Bharat Malhotra, Kushal Malhotra, Abhijeet Singh and Gayatri Bhatia represented Dr Rita Bakshi. Advocates Raajan Chawla and Pooja Joshi appeared for Seema Bajaj. Additional Public Prosecutor (APP) Aman Usman with advocate Manvendra Yadav appeared for the State. Central Government Standing Counsel (CGSC) Amit Tiwari with advocates Ayushi Srivastava, Arpan Narwal, Kushagra Malik and Ujjwal Tyagi represented the Union of India. Senior Advocate Pavan Narang with advocates Sidhartha Das, Himanshu Sethi, Tushar Sharma, Siddharth Gautam, Kamal Nayan and Himanshu Goel appeared for Anita Rani Mehra. .Advocates Smiti Verma, Pranay Chitale, Udayvir Rana and Aditya Dutta represented Neena Kapoor. .[Read Judgment]
