- 1 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 30TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE V. SRISHANANDA CRIMINAL PETITION NO. 200566 OF 2025 (482(Cr.PC)/528(BNSS)) BETWEEN: 1. PAIGAMBAR S/O HUSSAIN SAB, AGE:65 YEARS, OCC:RTD. TEACHER, R/O. TEACHERS COLONY, JEVARGI, TQ. JEVARAGI, DIST. KALABURAGI-585310. 2. SMT. ZULEKHA BEGUM W/O PAIGAMBAR, AGE:58 YEARS, OCC:HOUSE HOLD, R/O. TEACHERS COLONY JEVARGI, TQ. JEVARAGI, DIST. KALABURAGI-585310. 3. MOHAMMED NAZEER AHMED S/O PAIGAMBAR, AGE:33 YEARS, OCC:PRIVATE WORK, H.NO. E/27/100 TEACHERS COLONY JEVARGI, TQ. JEVARAGI, DIST.KALABURAGI-585310. 4. RESHMA BEGUM W/O AJAGAR PASHA, AGE: 39 YEARS, OCC:HOUSE HOLD, Digitally signed by SUMITRA SHERIGAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 H.NO. T-8-1544 FILTER BED ROAD, TAJ NAGAR MUSLIM COLONY, KALABURAGI-585104. 5. AJAGAR PASHA S/O MUBARAK ALI, AGE:42 YEARS, OCC: DRIVER IN HIGH COURT, H.NO. 1-592/10C OLD JEWARGI, H.NO. T-8-1544 FILTER BED ROAD, TAJ NAGAR MUSLIM COLONY, KALABURAGI-585104. 6. SHAMSHODDIN NADAF S/O PAIGAMBAR, AGE:33 YEARS, OCC: PRIVATE WORK, H.NO. E/27/ 100 TEACHERS COLONY JEVARGI, TQ. JEVARAGI, DIST. KALABURAGI-585310. …PETITIONERS (BY SRI MALIK PASHA, ADVOCATE, FOR SRI LIYAQAT FAREED USTAD, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, THROUGH JEVARGI P.S., JEVARGI SUB-DIVISION, JEWARGI, REPRESENTED BY THE ADDL. SPP, HIGH COURT OF KARNATAKA, BENCH AT KALABURAGI-585107. 2. ASMA ANJUM W/O SAMSHODDIN NADAF, AGE:28 YEARS, OCC:HOUSEHOLD, R/O. MADINA COLONY, MSK MILL, - 3 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 KALABURAGI CITY, DIST. KALABURAGI-585103 …RESPONDENTS (BY SRI VEERANAGOUDA MALIPATIL, HCGP, FOR R1; SRI PRADEEP KUMAR, ADVOCATE, FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF BNSS, 2023, PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN PRIVATE COMPLAINT REGISTERED IN PCR NO.05/2025 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 115, 352, 351(2), 85, 76, 74, 49 OF THE BHARATIYA NYAYA SANHITA, 2023,(BNS), AND SECTIONS 3 AND 4 OF THE DOWRY PROHIBITION ACT, BY THE RESPONDENT NO.1 JEVARAGI P.S., WHICH IS PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC JEVARAGI. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA ORAL ORDER (PER: HON'BLE MR. JUSTICE V. SRISHANANDA) 1. Heard learned counsel Sri Malik Pasha for Sri Liyaqat Fareed Ustad appearing for the petitioner and learned High Court Government Pleader Sri Veeranagouda Malipatil appearing for respondent No.1-State and learned counsel Sri Pradeep Kumar appearing for respondent No.2. - 4 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 2. This petition is filed by accused under Section 528 of BNSS with the following prayer: “Therefore, it is most humbly prayed that, the Hon’ble Court may kindly be pleased to quash the entire proceedings in Private complaint registration in PCR No.05/2025 for the offence punishable U/Sec. 115, 352, 351(2), 85, 76, 74, 49 of the Bharatiya Nyaya Sanhita (BNS) Act-2023 & Sec.3 & 4 of the Dowry Prohibition Act by the Respondent No.1 Jewaragi P.S., which is pending on the file of Senior Civil Judge & J.M.F.C. Jewaragi, in the interest of justice and equity.” 3. Facts in brief, which are utmost necessary for disposal of the present petition are as under: 3.1 A private complaint came to be lodged under Section 223 of BNSS alleging the commission of the offences punishable under Sections 115, 351(2), 352, 85, 76, 74, 49 of BNS, 2023, and Sections 3 and 4 of the Dowry Prohibition Act, 1951. - 5 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 3.2 Learned trial Magistrate on receipt of the complaint from the complainant, passed the order as under: “Complainant present. Sri K.E.B. Advocate for complainant presented complaint U/s. 223 & BNSS Act Punishable U/s. 115, 352, 351(2), 85, 76, 74, 49 of BNS & U/s. 3, 4 of Dowry Prohibition Act, 1961. Perused the complaint & document. As per provision of Sec.223, of BNSS before taking cognizance it is necessary to issue notice to accused persons. Issue Court Notice to A-1 to 6 office to register case as PCR.” 3.3 Since no sworn statement is recorded and straight away accused is summoned, validity of the order dated 08.05.2025 is called in question. 3.4 In order to appreciate the said aspect of the matter, it is just and necessary for this Court to cull out Section 223 of BNSS, which reads as under: - 6 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 “223. Examination of complainant.- A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: - 7 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.” 4. On careful perusal of the material on record, it is crystal clear that the Trial Magistrate on receipt of the complaint, is required to record sworn statement i.e., examining the complainant on oath and the witnesses, if any present and thereafter, if he is convinced that there is a prima facie material whereby an offence has been committed, before taking cognizance, has to issue notice to the proposed accused. 5. Such a procedure has not been adopted by the Trial Magistrate in the case on hand. Therefore, the order dated 08.05.2025 needs to be set aside as it is against the prescribed procedure under Section 223 of BNSS, 2023. Accordingly, it is set aside and the matter is remitted to - 8 - HC-KAR NC: 2025:KHC-K:3495 CRL.P No. 200566 of 2025 Trial Magistrate for disposal afresh strictly in accordance with provisions of Section 223 of BNSS. Sd/- (V. SRISHANANDA) JUDGE SBS List No.: 1 Sl No.: 35 CT:PK