-1- 2025:CGHC:46212 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2489 of 2025 Dr. Aparna Pandey D/o Muralidhar Pandey, Current Age About 27 Years R/o Flat No. 302 B Block Sagar Shikhar Apartment Opp. Mark Hospital, Bilaspur, District : Bilaspur, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through S H O, P.S.- Ajak, District : Bilaspur, Chhattisgarh 2 - Dr. Pankaj Tembhurnikar S/o Late Suresh Tembhurnikar Aged About 57 Years R/o Nikhileshwar Colony, Muktidham Road, Chantidih, P S Sarkanda, Bilaspur, District : Bilaspur, Chhattisgarh ... Respondent(s) For Petitioner : Mr. S.C. Verma, Senior Advocate with Mr. Sajal Kumar Gupta, Advocate For Respondent No.1 : Mr. Sanjeev Pandey, Dy. A.G. For Respondent No.2 : Mr. Rajeev Shrivastava, Senior Advocate with Mr. Hemant Kesharwani, Mr. Swapnil Keshari and Mr. Aakash Singh, Advocates S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 10/09/2025 1. This Criminal Miscellaneous Petition is filed by the petitioner making following prayer: Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.09.10 19:24:49 +0530 -2- “A. That, the Hon'ble court may kindly be pleased to set aside the impugned order taking cognizance dated 03.07.2025 in Complaint Case No. 2/2025, the Learned Special Judge (Atrocities), Bilaspur, took cognizance of offences under Sections 296, 351(2) of the BNS and Section 3(1)(d) of the SC/ST Act against the petitioner, in violation of the first proviso to Section 223(1) of the BNSS, which mandates that no cognizance shall be taken without giving the accused an opportunity to be heard. The said action is ex facie illegal and unsustainable in law, (Annexure P/1). B. That, the Hon'ble court may kindly be pleased to set aside the consequential proceedings going on in Complaint Case No. 2/2025, going before the Learned Special Judge (Atrocities), Bilaspur under Section 223 of the BNSS. C. Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the Petitioner, in the interest of justice. An affidavit in support of is filed herewith.” 2. Learned counsel for the petitioner would submit that respondent No.2 has filed a complaint case before learned Court below under Section 223 of BNSS for taking cognizance of the offence under Section 3 (1) (viii) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “Act of 1989”) and Sections 296, 221, 351 (2) of the BNS. He submits that when once application is filed under Section 223 of the BNSS in the nature of complaint, competent Court before whom complaint is filed is required to follow procedure as envisaged -3- under proviso to sub-Section (1) of Section 223 of BNSS, wherein, it is specifically mandated that before taking cognizance of offence, proposed accused/non-applicant therein is required to be heard. In the case at hand, before taking cognizance, no opportunity of hearing has been afforded to the petitioner, no notice is issued. Hence, impugned order Annexure P-1 is vitiated in the eyes of law. 3. Learned counsel for respondent No.2 do not oppose the submission of made by learned counsel for the petitioner based on proviso appended to Section 223 (1) of the BNSS. He, however, submits that if this Court allows the petition, then parties be directed to appear before concerned Court on the next date fixed i.e. 11.09.2025. He also pointed out that petitioner/non-applicant No.1 has already caused his appearance before Court below and therefore petitioner be directed to appear before the concerned Court on 11.09.2025. 4. At this stage, learned senior counsel appearing for petitioner would submit that petitioner has caused his appearance pursuant to impugned order which is not in accordance with law and, therefore, his presence, pursuant to proceedings which is contrary to law, cannot be considered that he has caused his appearance. Court below is required to issue notice in compliance of provision of Section 223 (1) of BNSS. 5. I have heard learned counsel for the parties and also perused the documents annexed along with this petition. -4- 6. Main grievance raised by learned counsel for the petitioner is that provision under Section 223 (1) of BNSS is not complied with . Relevant provision under Section 223 (1) is extracted below for ready reference: “223 Examination of Complainant:- (1) 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: x x x x x x 7. A bare perusal of aforementioned provision would show that it clearly envisages that no cognizance of offence shall be taken by the Magistrate without giving accused an opportunity of being heard. 8. In the case hand, from the arguments advanced by learned counsel for the parties from both sides, it is apparent that petitioner/non-applicant No.2 in the complaint case, was not issued notice or given any opportunity of being heard before taking cognizance of the offence as mentioned in the complaint application filed under Section 223 of BNSS. -5- 9. Hon’ble Supreme Court in case of Kushal Kumar Agrawal Vs. Directorate of Enforcement [(Criminal Appeal No.2749 of 2025 arising out of SLP (Criminal) No. 2766 of 2025] while considering the proviso to sub-section (1) of Section 223 of BNSS has observed as under: “The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside. Mr Raju, the learned Additional Solicitor General, has made two submissions. Firstly, he submits that hearing given to the accused in terms of the proviso to sub-section (1) of Section 223 of the BNSS will be confined to the question whether a case is made out to proceed on the basis of the complaint and hence, only the complaint and the documents produced along with the complaint can be considered at the time of hearing. His second submission is that it is well settled that cognizance is taken by the criminal Court of the offence and not the offender. Therefore, after taking cognizance and after following the procedure prescribed by proviso to sub-section (1) of Section 223 of the BNSS if cognizance is taken, -6- there will be no occasion to again take cognizance of the same offence when supplementary or further complaints are filed. Therefore, at that stage, there will be no occasion to give the accused the opportunity to be heard. The aforesaid two submissions made by Mr. Raju, the learned Additional Solicitor General, need not be considered, as the same do not arise in this appeal at this stage. However, we make it clear that the said contentions are expressly kept open, which can be raised before the Special Court. The impugned order dated 20th November, 2024, is set aside only on the ground of non-compliance with the proviso to sub-section (1) of Section 223 of the BNSS.” 10. In view of the specific provision under Section 223 of BNSS, decision as referred to above and undisputed fact that petitioner was not given any notice of hearing and he was not provided any opportunity of hearing, impugned order Annexure P-1 dated 03.07.2025 taking cognizance and registration of complaint against petitioner is set aside. 11. Learned counsel appearing for the parties have submitted that case was fixed before the Special Court (Atrocities) on 11.09.2025. 12. Looking to the fact that case is fixed tomorrow i.e 11.09.2025 for hearing, petitioner is directed to appear before the concerned Special Court (Atrocities) on the next date fixed after 11.09.2025 -7- so that he can be given an opportunity of being heard in terms of proviso to sub-section (1) of Section 223 of BNSS. 13. With the aforementioned observation and direction, this Criminal Miscellaneous Petition is allowed in part. Sd/----/-/- (Parth Prateem Sahu) Judge Praveen