In a significant ruling, the Kerala High Court has elucidated the procedural requirements under Section 223 of the BNSS (Banning of Unregulated Deposit Schemes Act). The court emphasized that before issuing notice to an accused named in a complaint, the Magistrate must first examine the complainant and any witnesses on oath, as mandated by Section 223(1). Furthermore, if the Magistrate decides to take cognizance of the offence, the accused should be afforded an opportunity to be heard prior to the issuance of notice.
Understanding Section 223 BNSS
Section 223 of the BNSS pertains to the examination of the complainant. It stipulates that a Magistrate, upon taking cognizance of an offence based on a complaint, shall examine the complainant and any present witnesses under oath. The essence of this examination must be documented in writing and signed by the complainant, the witnesses, and the Magistrate. Notably, the first proviso to Section 223(1) introduces a crucial requirement: the Magistrate shall not take cognizance of an offence without providing the accused an opportunity to be heard.
Judicial Interpretation by the Kerala High Court
Justice V.G. Arun, presiding over the matter, observed that the first proviso to Section 223(1) of the BNSS signifies a "radical change" from the corresponding provision in the Code of Criminal Procedure (CrPC), specifically Section 200. Under Section 200 of the CrPC, there is no obligation for the Magistrate to hear the accused before taking cognizance of an offence. In contrast, the BNSS mandates this preliminary hearing, thereby altering the procedural landscape.
The court delineated the procedure to be followed:
Examination of Complainant and Witnesses: Upon receiving a complaint, the Magistrate should first conduct an examination of the complainant and any witnesses under oath, as outlined in Section 223(1).
Decision on Cognizance: Following this examination, if the Magistrate decides to take cognizance of the offence, the accused must be given an opportunity to be heard before any notice is issued.
This interpretation ensures that the accused's right to a preliminary hearing is upheld, aligning with the legislative intent of the BNSS.
Case Background and Arguments
In the case under consideration, the counsel for the petitioner contended that the Magistrate had erred by issuing notice to the accused before examining the complainant and witnesses on oath, as required by Section 223(1). The petitioner argued that the accused should be notified only at the stage when the Magistrate decides to take cognizance of the offence.
The court acknowledged that the first proviso in Section 223(1) of the BNSS is absent in Section 200 of the CrPC, highlighting a deliberate legislative departure. This distinction underscores the BNSS's specific procedural safeguards intended to protect the rights of the accused at the cognizance stage.
Implications of the Ruling
This ruling by the Kerala High Court clarifies the procedural obligations of Magistrates under the BNSS. It underscores the necessity of:
Conducting a thorough examination of the complainant and witnesses under oath before proceeding.
Providing the accused with an opportunity to be heard prior to taking cognizance of an offence.
By adhering to this procedure, the courts ensure a balance between the complainant's allegations and the accused's right to a fair hearing, thereby upholding the principles of natural justice.
Conclusion
The Kerala High Court's interpretation of Section 223 of the BNSS establishes a clear procedural framework for Magistrates handling complaints under this Act. By mandating the examination of the complainant and witnesses, followed by a preliminary hearing for the accused before taking cognizance, the court reinforces the importance of safeguarding the rights of all parties involved in the judicial process. This decision serves as a guiding precedent for the application of the BNSS and highlights the judiciary's role in interpreting legislative provisions to uphold justice.
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