- 1 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 615 OF 2026 C/W CRIMINAL PETITION NO. 693 OF 2026 IN CRL.P No. 615/2026 BETWEEN: 1. AVIJITH BANNERJEE S/O AJAYKUMAR BANNERJEE AGED ABOUT 61 YEARS PRESENTLY RESIDING AT EAST BELINANT APARTMENT KANAKAPURA MAIN ROAD NEAR SARAKKI SIGNAL J.P.NAGAR, 6TH STAGE BENGALURU – 560 078. ALSO AT SY NO. 11/P1/12, SIBARA VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT AS A PROJECT MANAGER FOR PNC INFRATECH LTD., 2. SRI SATISH C.DHYANI S/O SHAMBU PRASAD AGED ABOUT 63 YEARS PRESENTLY RESIDING AT Digitally signed by SANJEEVINI J KARISHETTY Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 R/O PNC INFRATECH LTD., GULLAHALLI VILLAGE YERABALI POST, HIRIYUR TALUK CHITRADURGA DISTRICT – 577 501. ALSO AT SY NO. 11/P1/12, SIBARA VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT AS A GENERAL MANAGER FOR PNC INFRATECH LTD., …PETITIONERS (BY SRI SHIVA KUMAR K. B., ADVOCATE) AND: NAYAZ AHAMED KHAN GEOLOGIST OFFICE OF THE DEPUTY DIRECTOR DEPARTMENT OF MINES AND GEOLOGY 1ST CROSS, ADI SHAKTHI NAGARA CHALLAKERE ROAD CHITRADURGA – 577 501 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA HIGH COURT BUILDING BENGALURU – 560 001. …RESPONDENT (BY SRI B.N.JAGADEESHA, ADDL. SPP) THIS CRL.P IS FILED U/S.528 BNSS PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.2755/2025 PRODUCED AT ANNEXURE A PENDING ON THE FILE OF THE LEARNED I ADDL CIVIL JUDGE AND JMFC, CHITRADURGA, WHEREIN THE PETITIONERS HAVE BEEN ARRAIGNED AS ACCUSED NOS.1 - 3 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 AND 3 FOR ALLEGED OFFENCE P/U/S/ 21(1) AND 21(2) OF MMDR ACT. IN CRL.P NO. 693/2026 BETWEEN: 1. AVIJITH BANNERJEE S/O AJAYKUMAR BABBERHUM AGED ABOUT 61 YEARS PRESENTLY RESIDING AT EAST BELINANT APARTMENT KANAKAPURA MAIN ROAD NEAR SARAKKI SIGNAL J.P.NAGAR, 6TH STAGE BENGALURU – 560 078. ALSO AT SY NO. 11/P1/12, SIBARA VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT AS A PROJECT MANAGER FOR PNC INFRATECH LTD., 2. SRI SATISH DYANI S/O SHAMBU PRASAD PRESENTLY RESIDING AT R/O PNC INFRATECH LTD., GULLAHALLI VILLAGE YERABALI POST, HIRIYUR TALUK CHITRADURGA DISTRICT – 577 501. ALSO AT SY NO. 11/P1/12, SIBARA VILLAGE CHITRADURGA TALUK CHITRADURGA DISTRICT - 4 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 AS A GENERAL MANAGER FOR PNC INFRATECH LTD., ...PETITIONERS (BY SRI SHIVA KUMAR K. B., ADVOCATE) AND: NAYAZ AHAMED KHAN GEOLOGIST OFFICE OF THE DEPUTY DIRECTOR DEPARTMENT OF MINES AND GEOLOGY 1ST CROSS, ADI SHAKTHI NAGARA CHALLAKERE ROAD CHITRADURGA - 577 501 RERPESETNED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA HIGH COURT BUILIDING BENGALURU - 560 001. ...RESPONDENT (BY SRI B.N.JAGADEESHA, ADDL. SPP) THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CC NO.2756/2025 PRODUCED AT ANNEXURE-A PENDING ON THE FILE OF THE I ADDL.CIVIL JUDGE AND JMFC CHITRADURGA WHEREIN THE PETITIONERS HAVE BEEN ARRAIGNED AS ACCUSED NOS.1 AND 3 FOR ALLEGED OFFENES P/U/S 21(1) AND 21(2) OF MMDR ACT. THESE PETITIONS, COMING ON FOR ADMISSIONS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 5 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioners are before this Court calling in question the order of the concerned Court taking cognizance and registering C.C.Nos.2755/2025 and 2756/2025 for offences punishable under Sections 21(1) and 21(2) of the Mines and Minerals (Development and Regulation) Act, 1957 and Rule 44 of the Karnataka Minor Mineral Concession (Amendment) Rules, 2020. 2. Heard Sri. Shiva Kumar K.B., learned counsel appearing for the petitioners and Sri. B.N. Jagadeesha, learned Additional Special Public Prosecutor appearing for the respondent. 3. Facts in brief germane are as follows: The petitioners are the accused. Plethora of facts are narrated in the petition of the events commencing from 31.03.2017, till the institution of a complaint on 28.04.2025. The learned counsel for the petitioner for the present would restrict his submission to the procedure of the concerned Court - 6 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 in answer to a private complaint filed under Section 223 of the BNSS. A complaint comes to be filed by the Geologist on 28.04.2025 alleging offence punishable under Section 21(1) and Section 21(2) Mines and Minerals (Development and Regulation) Act read with Rule 44 of the Karnataka Minor Mineral Concession (Amendment) Rules, 2020. The concerned Court on the complaint being filed, takes cognizance of the offence and registers C.C.Nos.2755/2025 and 2756/2025 for the aforesaid offences. The order of the concerned Court reads as follows: "ORDER The complainant has filed the complaint under Sec. 223 of BNSS along with documents praying to punish the accused persons for the offence punishable under Sec. 21(1) and 21(2) of M.M.D.R. Act. Heard the complainant and perused the complaint and other documents. There are sufficient materials on record to proceed against accused persons. The materials on record shows violation of provisions of Sec. 21(1) and 21(2) of M.M.D.R. Act. Hence, the cognizance of the offence punishable under Sec. 21(1) and 21(2) of M.M.D.R. Act. The complainant is a public servant discharging the duty. Hence, recording the statement of the complaint on the oath is dispensed with. The complainant is an authorized persons for filing the present complaint. Considering the provisions of M.M.D. R. Act and the copy of Mahazar, report and the - 7 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 statement of witnesses, there are suficient materials to proceed against the accused for the offence punishable under Sec. 21(1) and 21(2) of M.M.D.R. Act. Hence, I deem it proper to issue process to the accused persons. Office is directed to register criminal case against accused persons and issue summons to accused persons, returnable by 22.12.2025." The issuance of summons is what has driven these petitioners to this Court in the subject petition. 4. A perusal at the order would indicate that the concerned Court has blissfully ignored the procedural drill under the BNSS as obtaining in Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 ('the BNSS' for short). Section 223 of the BNSS reads as follows: " 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: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 - 8 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: 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. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless- (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received." Section 223(1) of the BNSS mandates that once the private complaint is registered, a notice will have to be issued to the accused to hear them and then take cognizance of the offences. 5. This procedure is admittedly not followed. 5. This procedure is admittedly not followed. Non-following of the procedure would vitiate the very process and would lead to obliteration of the order so passed by the concerned Court on 03.10.2025. It becomes apposite to refer to the law in this regard. The Apex Court, in the case of KUSHAL KUMAR AGARWAL v. DIRECTORATE OF - 9 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 ENFORCEMENT reported in 2025 SCC OnLine SC 1221, holds as follows: “…. …. …. 4. Section 223 of the BNSS corresponds to Section 200 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘the CrPC’). However, a proviso similar to the proviso to sub-section (1) of Section 223 does not find place in Section 200 of the CrPC. 5. This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44 (1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India1 and Tarsem Lal v. Enforcement Directorate2. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1st July, 2024, Section 223 of the BNSS will apply to the present complaint. 6. 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. 7. 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.” (Emphasis supplied) A little earlier to the afore-quoted judgment of the Apex Court, this Court in the case of BASANAGOUDA R. PATIL Vs. SHIVANANDA S. PATIL, reported in 2024 SCC OnLine Kar - 10 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 96 this Court interpreted Section 223 of the BNSS and delineated the procedural drill for the consideration of a private complaint, and held as follows: “…. …. …. 7. The registration of the private complaint for offences punishable under Section 356(2) of the BNSS is not in dispute. The fulcrum of the compliant was that the petitioner made a defamatory speech against the respondent at an election rally. The issue that is brought before the Court, at this juncture, is not on the merit of the matter. The complaint is filed by the respondent invoking Section 223 of the BNSS, which is Section 200 in the earlier regime - Cr. P.C. The moment complaint is registered, a notice is issued to the accused. Issuance of notice to the accused has driven the petitioner to this Court, in the subject petition, contending that it is contrary to the procedure to be adopted in law. Therefore, it becomes germane to notice certain provisions of the BNS 2023. Filing of the private complaint is dealt with under Section 223 of the BNSS, which was Section 200 of Cr. P.C., it reads as follows: “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: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— - 11 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 (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: 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. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless— (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.” (Emphasis supplied) Proviso to sub-section (1) of Section 223 of the BNSS 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 BNSS deals with issuance of process which is akin to Section 204 of the Cr. P.C. This stage is yet to arrive in the case at hand. 8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as - 12 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard. 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 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 sub-section (1) of - 13 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 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.” (Emphasis supplied) In that light, on this short ground, the procedure under Section 223 of the BNSS is not followed, the taking of cognizance and decisions of process is rendered unsustainable. 6. For the aforesaid reasons, the following: ORDER (i) The criminal petitions are allowed-in-part. (ii) The proceedings in C.C.Nos.2755/2025 and 2756/2025 pending on the file of the II Additional Civil Judge & JMFC, Chitradurga stands quashed. (iii) The matter is remitted back to the hands of the concerned Court to regulate its procedure in accordance with law, bearing in mind the observations made in the course of the order. - 14 - HC-KAR NC: 2026:KHC:10518 CRL.P No. 615 of 2026 C/W CRL.P No. 693 of 2026 (iv) All contentions except the one considered in the course of the order shall remain open. Sd/- (M.NAGAPRASANNA) JUDGE JY List No.: 1 Sl No.: 21 CT:SS