- 1 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 7449 OF 2026 BETWEEN: 1. BENEDICT MARIYA D SOUZA D/O LOUIS PINTO AGED ABOUT 75 YEARS R/A NO.3-241, KUREDU MANE JB COMPOUND, PUTHIGE MITNABAIL, MANGALURU D.K DISTRICT - 574226 …PETITIONER (BY SRI: BALAKRISHNA M R.,ADVOCATE) AND: 1. STATE OF KARNATAKA BY MINES AND GEOLOGY DEPARTMENT MANGALORE D.K., DISTRICT REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU 560 001. 2. SATHYABAMA B V B, D/O LATE B P BARIKAR MAJOR IN AGE GEOLOGIST MINES AND GEOLOGY DEPARTMENT Digitally signed by PADMAVATHI B K Location: High Court of Karnataka - 2 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 MANGALORE D.K., DISTRICT - 575001 …RESPONDENTS (BY SRI: B N JAGADEESHA, SPP-I) THIS CRL.P IS FILED UNDER SECTION 482 CR.PC (FILED UNDER SECTION 528 BNSS) BY THE PETITIONER PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN CC.NO.821/2025 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 4, 4(1A) AND 21 OF MMRD ACT,1957 AND RULE 3(1), 42(1), 43 AND 44 OF KARNATAKA MINOR MINERALS CONCESSIONS RULES, 1994 WHICH IS NOW PENDING BEFORE THE HONBLE CIVIL JUDGE AND JMFC, MOODABIDRI, D.K., INITIATED BASED ON THE PRIVATE COMPLAINT FILED BY THE 2ND RESPONDENT. THIS CRL.P, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner is before the Court seeking the following prayer: "a) Call for the entire records in CC No.821/2025 for the offences punishable under section 4, 4(1A) and 21 of MMRD Act, 1957 and Rule 3(1), 42(1), 43 and 44 of Karnataka Minor Minerals Concessions Rules, 1994 which is now pending before the Hon'ble Civil Judge and JMFC, Moodabidri, D.K. initiated based on the private complaint filed by the 2nd respondent. - 3 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 b) Quash the entire criminal proceedings in CC No.821/2025 for the offences punishable under section 4, 4(1A) and 21 of MMRD Act, 1957 and Rule 3(1), 42(1), 43 and 44 of Karnataka Minor Minerals Concessions Rules, 1994 which is now pending before the Hon'ble Civil Judge and JMFC, Moodabidri, D.K., initiated based on the private complaint filed by the 2nd respondent. c) Pass such other relief or reliefs as this Hon'ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity." 2. Heard Sri M R Balakrishna, learned counsel appearing for the petitioner and Sri B N Jagadeedha, learned SPP-I appearing for the respondents. 3. The second respondent - complainant invokes the jurisdiction of the learned Magistrate under Section 223 of the BNSS for offences punishable under Sections 4, 4(1A) and 21 of MMRD Act, 1957 and Rule 3(1), 42(1), 43 and 44 of Karnataka Minor Minerals Concessions Rules, 1994. The concerned Court without hearing the petitioner has proceeded to register CC No.821 of 2025 for the aforequoted offences. The order of the concerned Court by registering CC No.821 of 2025 for the aforequoted offences runs counter to the statute itself. - 4 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 4. This Court in Sri Basanagouda R Patil (Yatnal) Vs Sri Shivananda S Patil 1, has held as follows: "The petitioner is before this Court calling in question an order dated 16-07-2024 passed by the 42nd Additional Chief Judicial Magistrate, Benagluru in P.C.R. No.9136/2024. 2. Heard the learned counsel Sri. Venkatesh P. Dalwai, appearing for the petitioner and the learned counsel Smt. Niveditha C. Shivanaikar, appearing for the respondent. 3. Sans details, facts in brief, germane are as follows: The respondent - a member of the legislative assembly registers a complaint against the petitioner before the jurisdictional Magistrate invoking Section 223 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (‘BNSS’ for short). The crux of the complaint is, the petitioner allegedly made a defamatory speech at an election rally. The issue in the lis at this juncture does not concern the merit of the compliant or its defence by the parties to the present lis. What has driven the petitioner to this Court in the subject petition is, a unique circumstance of interpretation of Section 223 of the BNSS. 4. Learned counsel Sri Venkatesh P Dalwai appearing for the petitioner would submit that the petition itself is preferred owing to a procedural aberration by the learned Magistrate. It is his contention that under Section 223 of the BNSS, the concerned Court has to issue notice to the accused prior to taking of cognizance. The Court has issued notice the moment complaint is filed by the respondent before the concerned Court. He would submit that this procedure is contrary to law. 1 Crl.P.NO.7526/2024 DD 27.09.2024 - 5 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 5. Learned counsel appearing for the respondent would refute the submission by contending that the proviso to Section 223 of the BNSS mandates that prior to taking of cognizance the accused would be heard and it is no where said that notice should be issued only at a particular time either immediately after filing the complaint or recording of sworn statement, as the case would be. He would seek dismissal of the petition. 6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 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: - 6 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 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: 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 - 7 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 BNSS, as 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 - 8 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 terms of proviso to sub-section (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. 13. For the aforesaid reasons the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. (iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order. - 9 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, I.A.No.2 of 2024 stands disposed." 5. In the light of the law as laid down by this Court as quoted herein above, the concerned Court shall now redo the exercise of taking of cognizance and registering the CC, only after following the procedural drill as is indicated in the said case. 6. For the aforesaid reasons, the following: ORDER (i) Criminal Petition is allowed. (ii) Proceedings in CC No.821 of 2025 before the Civil Judge and JMFC, Moodabidri, D.K., stands quashed. (iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in - 10 - HC-KAR CNR: KAHC010349812026 NC: 2026:KHC:37234 CRL.P No. 7449 of 2026 mind the observations made in the course of the order. (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, IA 2 of 2026 filed for stay stands disposed. Sd/- (M.NAGAPRASANNA) JUDGE BGN List No.: 2 Sl No.: 64