Case Note & Summary
The petitioner, Ashok S/o Siddappa Bankar, filed a criminal petition under Section 482 of the Code of Criminal Procedure, 1973 (corresponding to Section 528 of BNSS) seeking to quash the entire proceedings in CC No.12253/2024 pending before the I Addl. Civil Judge and JMFC Court, Hubballi, for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The respondent, Fayaz Aahmad S/o Aurangzeb Naikar, had filed the complaint. The petitioner contended that the proceedings lacked procedural compliance as the Magistrate had not heard the accused before taking cognizance, as required by the first proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court framed the issue of whether the procedure of hearing the accused at the stage of taking cognizance under the first proviso to Section 223 BNSS applies to complaints under Section 138 of the NI Act. The court examined Section 223 BNSS, which deals with examination of the complainant, and noted that the first proviso mandates that the Magistrate shall hear the accused before taking cognizance if the complaint is made by a public servant or court, or if the accused is not likely to abscond. The court held that this procedure applies to all complaints, including those under Section 138 of the NI Act. Since the Magistrate had not complied with this mandatory requirement, the proceedings were quashed as void ab initio. The petition was allowed.
Headnote
A) Criminal Procedure - Cognizance of Offence - Hearing of Accused - First proviso to Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 - The court considered whether the mandatory procedure of hearing the accused before taking cognizance under the first proviso to Section 223 BNSS applies to complaints under Section 138 of the Negotiable Instruments Act, 1881. Held that the procedure applies and non-compliance renders the proceedings void ab initio. (Paras 1-3)
Issue of Consideration
Whether the procedure of hearing the accused at the stage of taking cognizance as prescribed in the first proviso to Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 applies to complaints for offence under Section 138 of Negotiable Instruments Act, 1881.
Final Decision
The petition is allowed. The entire proceedings in CC No.12253/2024 pending on the file of the I Addl. Civil Judge and JMFC Court, Hubballi, are quashed.
Law Points
- Mandatory hearing of accused at cognizance stage
- First proviso to Section 223 BNSS applies to Section 138 NI Act complaints
- Non-compliance renders proceedings void ab initio
