Bombay High Court: In a criminal writ petition filed by the MD CEO of HDFC Bank against the order of issue notice passed by the Judicial Magistrate First Class, Gurgaon (‘Judicial Magistrate’) against him, a Single Judge Bench of S.M. Modak, J., stated that when Section 223 of BNSS is perused, the Magistrate must take cognizance of an offence, he is expected to examine the complainant on oath and witnesses. Thus, after filing of complaint there must be verification and when prior to decision on taking cognizance, the accused needs to be heard. Hearing the accused cannot be interpreted prior to recording the verification and the statement of witnesses.
Thus, the Court quashed the notice issued by the Judicial Magistrate to the HDFC Bank’s MD-CEO in the defamation case filed against him and stated that the Judicial Magistrate may proceed with the matter by recording the verification of the complainant and all witnesses and then pass the appropriate order.
Background
The complainant filed a private complaint before the Judicial Magistrate against MD CEO of HDFC Bank for the offences under Section 356(1), 356(2), 356(3) and Section 3(5) of the Nyaya Sanhita, 2023 (‘BNS’). Subsequently, the Judicial Magistrate issued notices to MD CEO of HDFC Bank, who was the proposed accused with reference to the said complaint.
Aggrieved by the issue of notice, the petitioners approached the Court challenging the said order as he contended that such order was issued without recording the verification statement as per the proviso of Section 223 of BNSS.
Analysis, Law and Decision
Issue 1: Whether the Magistrate was justified in issuing notice to proposed accused prior to recording of verification statement as per the proviso?
The Court observed that the meaning of “taking cognizance” must be considered in the present case for deciding at what stage notice to the proposed accused is justified, that is, prior to verification or after it.
The Court opined that it is difficult to crystallise when it can be said that the Magistrate has taken cognizance, but when verification is recorded or Magistrate has directed the complainant to give verification, it certainly amounts to proceeding in the direction of taking cognizance. Additionally, Section 223 of BNSS, contemplates that the Magistrate must take cognizance of an offence, he is expected to examine the complainant and witnesses on oath. The Court noted that the purpose of recording the verification is to give an opportunity to the Magistrate to ascertain whether to proceed further or not for the very purpose, the proviso specifically requires hearing of the accused prior to taking cognizance. Therefore, the Magistrate was not justified to issue such order without recording the verification.
Issue 2: Whether recording the verification statement of the complainant and statement of witnesses, if any, is mandatory and at what stage?
The Court observed that the stage at which such notice is contemplated can be discerned from the wordings of the proviso to Section 223 of BNSS, which states that no cognizance shall be taken without giving accused an opportunity of being heard. The Court explained that in the first part of the said section, the legislature has used the phrase “while taking cognizance” whereas in the proviso there is a bar on taking cognizance without hearing the accused. Reading the said Section along with the proviso, the Court concluded that the stage of taking cognizance would occur only after examining the complainant and witnesses and not earlier immediately on filing of complaint.
The Court stated that the accused needs to be heard prior to the decision on taking cognizance. Unless the verification is recorded, the stage of hearing of accused will not come. The accused has every right to insist on the compliance of the procedure regarding verification. Therefore, the Court opined that the Magistrate has committed an error by issuing notice without recording the verification statement of the complainant and statement of witnesses.
Based on these observations the Court quashed and said aside the Judicial Magistrate’s order and stated that the Judicial Magistrate may proceed with the matter by recording the verification of the Complainant and all witnesses, if any and then pass the appropriate order.
[Sashidhar Jagdishan v. State of Maharashtra, Crl. W. P. No. 4153 of 2025, decided on: 5-8-2025]
Advocates who appeared in this case:
Advocate for the Petitioners- Ravi Kadam, Sudeep Passbola, Sr. Advocates; Sandeep Singhi, Chandan Singh Shekhawat, Sanskruti Harode, Rohin Chauhan i/b. Parinam Law Associates, Advocates
Advocate for the Respondents- N.B. Paitil, APP; Aabad Ponda, Sr. Advocate, Monish Bhatia, Hemant Ingle, Minal Chandnani, Jyoti Ghag, Ankit Singhal i/b. Dua Associates, Advocates
