HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 3907 of 2025 Court No. - 27 HON'BLE RAM MANOHAR NARAYAN MISHRA, J. 1. Heard learned counsel for the appellants, learned AGA for State respondent no.1 and perused the record. 2. Instant criminal appeal under section 14A(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the order dated 17/06/2025 passed by the learned Special Sessions Judge, SC/ST Act, Raebareli, in Criminal Miscellaneous Case No. 452 of 2025, under Sections 173(4) BNSS (old Section 156(3) CrPC, Police Station Gurbuxganj, District Raebareli. 3. Learned counsel for the appellants submits that the learned court below, while treating the application under section 173(4) CrPC filed by the defacto /complainant treated the same as a complaint by the impugned order dated 17/06/2025 and directed issuance of notice under Section 226 CrPC to proposed accused persons. The case was fixed for recording statements under Section 223 CrPC. 4. He next submits that Section 223 BNSS, clearly stipulates that the learned trial court must, before taking cognizance of an offense, examine the complainant and his witnesses on oath, document their statements and Versus Counsel for Appellant(s) : Amitabh Tripathi Counsel for Respondent(s) : G.A. Ashish Kumar Mishra And Another .....Appellant(s) State Of U.P. Thru. Secy. Home Lko. And 2 Others .....Respondent(s) only then issue notice to the accused as per the proviso to Section 223(1) BNSS. Once, the notice is sent and submissions are considered, the learned trial court may take cognizance and proceed in accordance with law. 5. He further submitted that this Hon'ble Court in a recent judgment Prateek Agarwal versus State of UP and another, reported in 2024 (11) I.L.R. Allahabad, 527, in which the similar question was involved in an application under Section 482 CrPC filed by the proposed accused with a prayer to quash the impugned order passed by learned Sessions Judge, Sitapur, in Criminal Revision No. Nil of 2024, in a case under Sections 302 and 328 IPC. In that case the police submitted final report after conclusion of investigation in favour of the applicant. The complainant filed a protest petition against the said final report. It was treated as complaint by the the trial court under Section 210 of BNSS, 2023. 6. He next submitted that this Court observed that it is also evident that at the moment the complaint was registered, the trial court, before recording the statement of the complainant, as well as witnesses, issued notice to the accused/applicant, which is erroneous. The court held in para 8 in Prateek Agarwal (supra) is quoted below: "Proviso of sub section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offense, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offense shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the CRLA No. 3907 of 2025 2 B.N.S.S. deals with the issuance of process which is akin to section 204 of the Cr.P.C. 7. This Court further observed in Pratik Agarwal (supra) in paragraphs 8, 10, 11 and 12, which are extracted below:- 8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C. 10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its CRLA No. 3907 of 2025 3 procedure thereafter. 11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to subsection (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023. 12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. For hearing. Call on 13.08.2024." The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order." CRLA No. 3907 of 2025 4 8. In view of above observations, this Court remitted the matter back to the concerned court the exercise from the observation made in the courts the order. 9. I find force in the submissions of learned counsel for the appellants, no useful purpose of law would be served by keeping the appeal pending before this Court. The matter is remitted to the learned trial court. 10. Accordingly, the impugned order is set aside to the extent that where notice has been directed to be issued to the proposed issue at the stage of fixing the case for recording statements of the complainant under Section 223 of BNSS. The court below shall consider the issuance of notice to the proposed accused after recording statements of the complainants and witnesses. 11. The appeal stands partly allowed accordingly. December 3, 2025 KR CRLA No. 3907 of 2025 5 (Ram Manohar Narayan Mishra,J.) Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench