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Judgment
ORDER
The 1st accused in Crl.MP No.1525/2025 on the files of the Chief Judicial Magistrate Court, Thiruvananthapuram has filed this Crl.M.C under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS').
The relief sought for in this petition is as under:
“For these and other reasons to be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to quash A-2 Order issued by the Hon’ble Chief Judicial First Class Magistrate Court Thiruvananthapuram and to follow the procedural drill elaborated in Annexure A3, A-4 & A-5 Judgments before taking a decision on Annexure A-1 Private Complaint whether to take cognizance or not.”
Heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent and the learned Public Prosecutor appearing for State of Kerala.
According to the learned counsel for the petitioner, as per Annexure A2 order, the learned Magistrate took cognizance for the offence punishable under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'), against the petitioner and other accused persons. According to him, though notice was issued to them prior to start of recording the statement, i.e, before taking cognizance, the opportunity of hearing mandated under the first proviso to Section 223 (1) of BNSS has been denied and the copy of the complaint, documents and sworn statements recorded as that of the complainant and witnesses not given for perusal to the petitioner to submit his version. Therefore, in fact, even though notice was given, the opportunity of hearing envisaged under the first proviso to Section 223 (1) of BNSS has been denied and for the said reason, the matter would require interference. He submitted further that thus the matter to be remanded back to the learned Magistrate for fresh consideration, after affording the petitioner an ample opportunity to submit his version after getting copies of the complaint, the documents and the sworn statements already recorded.
Whereas it is submitted by the learned counsel for the 2nd respondent that in this case going by the order, notice was issued even before start of recording the statements and in fact first proviso to Section 223 (1) of BNSS has been complied. It is also pointed out that the order itself would show that the learned counsel appearing for the complainant and the accused were heard before the order was passed. Therefore, the contention raised by the learned counsel for the petitioner to unsustain the order or the prayer for remand would not sustain in the eye of law. Therefore, the Crl.M.C is liable to be dismissed.
The learned Public Prosecutor also appraised the legal position that the first proviso to Section 223 (1) of BNSS mandatorily be complied with opportunity of effective hearing.
While addressing the rival submissions, it is relevant to refer Annexure.A2 order. Paragraph 3 of Annexure A2 order reads as under:
“3.The offence alleged is punishable under section 356(2) of the hatiya Nyaya Sanhita, 2023. Before examining the complainant and his witnesses, notice was given to all the accused. They appeared before the court. The complainant and two witnesses were examined. They deposed in tune with the contentions in the complaint. There are sufficient prima facie materials on record to show that the accused had published defamatory matters against the complainant. So the complaint is taken on file as CC No.351/2025. Issue-summons to the accused. Take steps. For return of summons 19/02/2026.”
A cursory reading of Annexure A2, would show that it is a cryptic order without any reasoning. In fact, the learned Magistrate passed an enigmatic order without any discussion of the materials considered to justify how the offence u/s. 356(2) of BNS prima facie made out, while deciding to proceed under Section 227 of BNSS for the offence under Section 356 (2) of BNS against the petitioner and other accused persons. Thus, Annexure A2 order is liable to be interfered for the said reason alone.
In this case there is no dispute that even prior to recording the statements of complainant and witnesses on oath, i.e before taking cognizance, notice was issued to all the accused persons (A1 to A6) including the petitioner and they appeared before the learned Chief Judicial Magistrate. However, the order doesn't show whether copies of complaint, documents and sworn statements were made available to the petitioner or the other accused to ensure the mandate of first proviso to Section 223 (1) of BNSS (opportunity of being heard) in letter and spirit.
In this context, it is pertinent to note that 'Opportunity of being heard' envisaged as per the first proviso to Section 223 of BNSS is not merely an empty aimless formality. The legislative intent behind the proviso is to avoid false implication of innocent persons in crimes so as to carry the trauma of becoming an accused in cases where no materials available to array him as an accused. Thus, this proviso would require an interpretation so as to make the same as meaningful and purposeful. Even though the statute does not provide anything more other than stating that an accused should be given “an opportunity of being heard”, an opportunity of being heard should not be interpreted so lightly to hold that mere ensuring presence of the opposite party during hearing as a mute spectator or a silent party, without sufficient opportunity to submit his version.
In fact, opportunity of hearing means, the accused should be given a fair and reasonable opportunity to submit his version regarding the allegations with reference to the complaint, documents and sworn statements that would be relied upon for the purpose of proceeding further by the learned Magistrate. If so, an effective interpretation when given the term 'an opportunity of being heard', the same would mean that while issuing notice, copies of the complaint and documents produced along with complaint may be served to the opposite parties . Otherwise, when the opposite party appears the court shall ensure that the copies of the complaint and documents served upon the opposite party or to his counsel after getting acknowledgment of the same in the complaint itself; for which the court shall obtain sufficient copies of complaint and documents taking into consideration of the number of the opposite parties while filing the complaint at the first instance. No doubt, the opposite party has no right to cross examine the complainant or witnesses or to interfere with recording of sworn statements of the complainant and witnesses, but the opposite party can apply for copies of the sworn statements and additional documents, if any as per law and the court is bound to give the same to submit his case before the court. By following the aforesaid procedure the court should ensure the opportunity of hearing meaningful and effective. Then the court can pass appropriate order as per law. It is also relevant to hold that the said order should contain the contentions raised by both sides, the evaluation of the relevant materials and the finding of the court based on the points argued with cogent reasons justifying either dismissal of complaint under Section 226 of BNSS or issuance of summons under Section 227 of BNSS.
In the instant case, for the above reasons the impugned would not sustain in the eye of law and therefore, the same is liable to be set aside and the matter to be remanded to the Chief Judicial Magistrate, Thiruvananthapuram for fresh consideration in accordance with law in view of the observations and findings made herein above.
In the result, this Crl.M.C is allowed. Annexure A2 is set aside. The matter is remitted back to the Chief Judicial Magistrate, Thiruvananthapuram for fresh consideration. Parties herein are directed to appear before the Chief Judicial Magistrate Court, Thiruvananthapuram on 22.07.2026. Registry is directed to forward a copy of this order to the Chief Judicial Magistrate concerned and all Criminal Courts in the Disitrict Judiciary in the State to ensure compliance of the directions without fail.
APPENDIX OF CRL.MC NO. 1021 OF 2026
PETITIONER ANNEXURES
Annexure A-1 A TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT HEREIN AS CRL.MP NO. 1525/2025 ON THE FILES OF HON’BLE CHIEF JUDICIAL MAGISTRATE, TRIVANDRUM
ANNEXURE A-2 A TRUE COPY OF THE ORDER DATED 19.12.2025 ISSUED BY THE HON’BLE CJM IN CRL.MP 1525/2025
Annexure A-3 A TRUE COPY OF THE JUDGMENT OF HON’BLE KARNATAKA HIGH COURT DATED 27.09.2024 IN CRL.MP NO. 7526 OF 2024
Annexure A-4 A TRUE COPY OF THE JUDGMENT IN CRL.MC NO. 508 OF 2025 DATED 22.01.2025
Annexure A-5 A TRUE COPY OF JUDGMENT OF HON’BLE ALLAHABAD HIGH COURT IN RAKESH KUMAR CHATRUVEDI VS. STATE OF UTTAR PRADESH DATED 29.07.2025