Bombay High Court Quashes Magistrate’s Notice | Verification Of Complainant And Witnesses Mandatory Before Cognizance | “Accused Recognised With Right Of Audience”
Isabella Mariam
The High Court of Judicature at Bombay, Single Bench of Justice S.M. Modak, held that an order issuing notice to a proposed accused prior to recording the verification statement of the complainant and witnesses was legally unsustainable. The Court directed that the order dated 16th June 2025 issuing such notice be quashed and set aside, while permitting the Magistrate to proceed further in accordance with law by first recording verification. The Court clarified that the rights of the proposed accused were sufficiently safeguarded, as they would have an opportunity to be heard after the verification process was completed. It further observed that the Magistrate’s omission to follow the statutory procedure could be corrected under Article 227 of the Constitution.
The matter arose from a private complaint filed before the Judicial Magistrate First Class, Girgaon, by two complainants. The complaint was lodged under Section 356(1), 356(2), 356(3), and Section 3(5) of the Bharatiya Nyay Sanhita, 2023. The Court record indicated that the complaint was filed within jurisdiction, and the staff of the concerned Court endorsed that the e-filing was “checked and verified” on 16th June 2025. On the same day, the Magistrate passed an order directing that notice be issued to the proposed accused under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the Roznama reflected the direction to issue such notice without recording verification of the complainant.
The petitioner, a proposed accused, approached the High Court challenging this order. The petitioner contended through counsel that the Magistrate was not justified in issuing notice to the proposed accused before recording the verification statement of the complainant, as required under the statutory provisions.
Senior Advocate Ravi Kadam, appearing for the petitioner, relied on judgments of different High Courts, including Basanagouda R. Patil v. Shivananda S. Patil, Prateek Agarwal v. State of U.P., Suby Antony v. Judicial First-Class Magistrate-III, Brand Protectors India Pvt. Ltd. v. Anil Kumar, and Rakesh Kumar Chaturvedi v. State of U.P. It was submitted that all these decisions were unanimous in interpreting that the requirement of giving notice to the accused must follow verification but precede taking cognizance. Counsel argued that the Magistrate’s action of issuing notice without recording verification contravened this settled legal position.
On the other hand, Senior Advocate Aabad Ponda, appearing for the respondents, submitted that Section 223 of the Bharatiya Nagarik Suraksha Sanhita must be interpreted differently. He argued that the first part of the section referred to “while taking cognizance of an offence,” and the proviso requiring notice to the accused was meant to apply prior to the stage of cognizance. According to him, in the instant case, the Magistrate had not yet taken cognizance, and therefore was justified in issuing notice at that stage. Mr. Ponda relied on judgments of the Supreme Court and High Courts to support his contention that cognizance occurs only after certain judicial acts are performed, and until then, notice could validly be issued. He further argued that even if an error was committed, it could not be corrected under supervisory jurisdiction under Article 227 of the Constitution, as such jurisdiction was not meant to correct mere errors.
The High Court carefully examined both sets of arguments and the statutory framework. It noted that Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita provides: “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.” The Court observed that this proviso was a new procedural safeguard introduced in the statute.
The petitioner insisted that this safeguard required recording of verification before issuing notice, while the respondents argued for an independent reading of the proviso to justify issuance of notice without verification.
The Court recorded that all High Courts in judgments cited by the petitioner were unanimous in their interpretation of similar provisions. Justice Modak noted: “Giving of an opportunity of hearing is not an empty formality. Such notice should be accompanied by copy of complaint, sworn statements of the complainant and witnesses if any. Taking of cognizance under section 223 of B.N.S.S. would come only after recording of sworn statement.” The Court stated that the first stage after filing a complaint is examination of the complainant and witnesses, and only then can cognizance be taken with the accused being afforded an opportunity of hearing.
The Court also recorded: “The purpose of recording statements prior to taking cognizance is only for ascertaining whether the prime facie case is disclosed.” Referring to authoritative judicial pronouncements, it observed that “the meaning of the word ‘cognizance’ depends upon the facts and circumstances. When the Magistrate applies his mind for the purpose of proceeding under section 200, then it amounts to taking cognizance.”
Justice Modak further noted that although Mr. Ponda argued for an independent reading of the proviso, such interpretation could not be accepted: “Ultimately this proviso is nothing but an exception to what is stated in opening part of Section 223. It is the one of the principle of interpretation that ‘the main provision and the proviso’ has to be read together.” The Court clarified that the legislature’s intention was not to mandate notice before verification but to ensure that no cognizance could be taken without hearing the accused.
The Court also stated: “When the accused is recognised with a right of audience, they have got every right to insist on the compliance of the procedure regarding verification. Certainly error committed by the learned Magistrate can be corrected by resorting to the provisions of Article 227 of the Constitution.”
On the argument regarding supervisory jurisdiction, the Court observed that while generally supervisory powers are to be sparingly exercised, the case before it involved total non-compliance of a jurisdictional requirement. Therefore, the High Court was justified in exercising powers under Article 227.
The High Court partly allowed the petition and quashed the order dated 16th June 2025 issuing notice to the proposed accused. It recorded: “The order of issuance of notice to proposed accused dated 16th June 2025 is quashed and set aside.” The Court clarified: “The Court of JMFC is at liberty to proceed with the matter by recording the verification of the Complainant and all witnesses, if any and then pass the appropriate order.” It further directed that the rights of the proposed accused would remain protected, as they would still have the opportunity to challenge any subsequent order passed by the Magistrate after verification.
The Court also stated that it had not expressed any opinion on the allegations in the complaint, and the petition stood disposed of with the above directions.
Advocates Representing the Parties
For the Petitioners: Senior Advocate Ravi Kadam, Senior Advocate Sudeep Passbola, Senior Advocate Sandeep Singhi, Advocate Chandan Singh Shekhawat, Advocate Sanskruti Harode, Advocate Rohin Chauhan, instructed by Parinam Law Associates.
For the Respondents: Senior Advocate Aabad Ponda, Advocate Monish Bhatia, Advocate Hemant Ingle, Advocate Minal Chandnani, Advocate Jyoti Ghag, Advocate Ankit Singhal, instructed by Dua Associates.
For the State: APP N.B. Patil.
Case Title: Sashidhar Jagdishan v. State of Maharashtra & Ors.
Neutral Citation: 2025: BHC-AS:35585
Case Number: Criminal Writ Petition No. 4153 of 2025
Bench: Justice S.M. Modak
