The Gauhati High Court clarified that the police are not required to issue a notice to a complainant before recording the complainant’s oath or examination under Section 223 of the Bharatiya Nagarik Suraksha Sanhita when the offence is cognizable and an FIR has already been registered. The bench, while hearing a criminal revision petition, examined whether the procedural steps outlined in the Sanhita mandate issuance of a prior notice to a complainant before the police proceed to record statements under Section 223. The accused in the case had challenged the proceedings on the ground that the police had recorded the examination of the complainant without first serving a notice, contending that this omission rendered the subsequent investigation and the statements recorded under Section 223 invalid.
The High Court analysed the statutory scheme of the BNSS and noted that Section 223 specifically contemplates the recording of the complainant’s examination on oath. The court observed that the provision does not expressly require that a notice be served on the complainant prior to recording the statement, unlike other sections in the procedural code where notice requirements are explicitly specified. The bench emphasised that Section 223 operates in the context of a registered FIR for a cognizable offence and is part of the police’s fact-finding and evidence-gathering exercise. Issuance of a prior notice to the complainant, the court held, is not a prerequisite under the statute for recording the examination on oath.
In reaching its conclusion, the High Court distinguished between statutory requirements that are clearly prescribed and procedural formalities that are not mandated by the legislative text. It noted that when the legislature intends to impose a notice requirement before a particular step, it does so expressly in the relevant provision. The absence of such a mandate in Section 223 indicates that the police may proceed to record the complainant’s examination after registration of the case without being obliged to first issue a formal notice. Accordingly, the court rejected the argument that non-issuance of a notice vitiated the recording of the complainant’s statement under Section 223.
The court also examined the purpose of recording the complainant’s examination on oath, stressing that this exercise is aimed at securing a reliable narrative of the allegations at an early stage of investigation. The statement recorded under Section 223, the court observed, is often relied upon during trial as part of the evidence, and the statutory provision enables law enforcement to record the complainant’s version under oath to ensure authenticity. Introducing a prior notice requirement, the High Court reasoned, would serve no legislative purpose and could potentially impede the prompt and effective recording of material statements in the investigation process.
Furthermore, the High Court observed that procedural safeguards for the accused, such as the right to receive copies of statements and documents, remain available under the Sanhita and the Code of Criminal Procedure. These safeguards ensure that the investigation proceeds fairly and that the accused has access to relevant material for the preparation of defence, even if no separate notice is required before recording the complainant’s examination under Section 223.
Given the statutory text and the object of Section 223, the High Court held that the police’s omission to issue a notice to the complainant before recording the latter’s statement on oath did not constitute a violation of mandatory procedure. Consequently, the High Court dismissed the revision petition and upheld the validity of the investigation steps taken by the police, including the recording of the complainant’s examination under Section 223 without prior notice. The court’s ruling clarifies the procedural contours of Section 223 of the BNSS and affirms that notice issuance prior to recording the complainant’s statement is not a statutory requirement, thereby providing guidance on the correct implementation of the provision during criminal investigation.
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