S.210(1)(c) BNSS| Court Not Obligated To Record Witness Statement Or Call Aggrieved Party To Take Cognizance Of Offence: P&H High Court

The Punjab & Haryana High Court has clarified that under Section 210(1)(c) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a Magistrate is not obligated to record the statement of any witness or call the aggrieved party before taking cognizance of an offence or issuing process.

For context, Section 210(c) BNSS states that the Magistrate can take cognizance of offence upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed

Justice Sanjay Vashisth in his order elucidated, "for taking cognizance u/s 210(1)(c) of BNSS, 2023 and to issue process, it is not obligatory over the Court to record statements of the witnesses or even to call for the aggrieved party."

The Court added that, bare reading of the provision is "entirely based upon the satisfaction" of the Magistrate, who comes to know of happening of some offence, on his own or even upon information from any person, other than the police officer.

Not only this, Magistrate can take cognizance entirely on the basis of his own knowledge also for committing an offence, and thereupon, no specific procedure is required to be adopted or followed before issuance of process vis-à-vis the suspect, the court added.

"However, even in a warrant case, if thinks fit, Magistrate can direct the accused to be brought before it simply by issuing summon for appearance by virtue of Section 227(1)(b) of BNSS, 2023," added the bench.

The Court further said that to have a comparative study of entitlement of accused to raise objection u/s 211 (Transfer on application of accused) with that of first proviso to Section 223 of BNSS, 2023, it can now be safely understood that legislation has already taken notice of the false acquisition, if any, because in both the situations summoned person/accused has been granted opportunity of hearing in advance to proceed further.

These observations were made while hearing a plea challenging the summoning order passed by a Magistrate in custodial death case. Four police officials who were summoned in case pertaining to Sections 103, 238, 340 read with Section 190 of Bharatiya Nyaya Sanhita, 2023 (BNS) (corresponding Sections 302, 201, 470/471 r/w 149 IPC), had challenged the order.

In the present case, the Cognizance was taken by the Magistrate under 210(1)(c) of BNSS which states that cognizance can be taken by him upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

After hearing the submissions, the Court said that the Magistrate's power to take cognizance u/s 210(1)(c) is exclusive, independent and of holistic value.

"To remove any doubt or apprehension of biasness of the summoned accused, legislation has inserted Section 211 making it obligatory over the Magistrate to apprise the summoned accused of his right to file objection and then to proceed as per the consequential directions issued by the Chief Judicial Magistrate in that behalf," it added.

The Court said that in the present case, petitioners have assumed that without following the procedure given under Chapter XVI, they could not have been summoned by the Magistrate.

"Whereas, from the bare reading of the provisions, it is clear that power to take cognizance u/s 210(1)(c) is exclusive and independent, however, on summoning of the accused, it would be subject to the mandatory compliance of Section 211 of BNSS, 2023," it added.

The Court pointed that the  petitioners have been issued the process u/s 227(1)(b) of BNSS, 2023, which says that even in warrant cases, "if Magistrate thinks it appropriate, accused can be summoned to be brought before it for the purpose of appearance only."

"Undoubtedly, before resorting to the stage of issuing process, as in the present case also, it is obligatory over the concerned Magistrate to have enough material before it for satisfying itself of happening of the offence(s) to resort to its power," it said.

Justice Vahishth highlighted that apprehension of the petitioners that there is no statement or document to be supplied to them seems to be unfounded, because the impugned order, which is detailed one, clearly suggests that there was enough material before the Magistrate while taking cognizance on judicial side and it is entirely on the basis of Magistrate's satisfaction that process has been issued for commencement of the proceedings.

"It is also settled proposition of law that accused has no locus standi at this stage, where Magistrate has to take a decision, as to whether process is required to be issued to the accused or not," it said. 

While examining the impugned summoning order, the Court noticed that a list of the relatives of the deceased and the number of their depositions is mentioned.

It included a description of the statements made by four relatives of the deceased. Statements of 12 witnesses, i.e., police officials, Advocate Surya Kant Singla, three Medical Officers, one Forensic Expert, two newspaper reports, and three Nodal Officers have also been recorded, it noted.

"Before reaching to the stage of Section 231 of BNSS, 2023, it can' be assumed that on reaching to an appropriate stage, provision of law would not be complied with. As of now, it appears that prosecution would definitely rely upon the statements recorded and material collected by the Judicial Magistrate during the course of inquiry. But in the present case, the accused have not even waited to reach to that stage and has approached this Court prematurely without having any alleged grievance for violation mentioned under Section 231(iii) of BNSS, 2023," the court said. 

The high court said that once it is observed that judicial inquiry carries wider scope than the inquiry conduced under Section 194 BNSS, allegation of the petitioners that the Magistrate, who conducted judicial inquiry could not himself exercise the power of taking cognizance under Section 210(1)(c) of BNSS, 2023, is also found to be baseless.

Moreover, summoned accused would be free to express his apprehension of any bias in the objection application, if any, is thought to be filed under Section 211 of BNSS, 2023, it added.

Accordingly, high court held that there is no infirmity in the magistrate's order, which it said appeared to have been passed in accordance with the provisions of BNSS, 2023. 

Title: Navpreet Singh and others v. State of Punjab

Mr. P.S. Ahluwalia, Advocate, Ms. Bhavi Kapur, Advocate and Mr. Prince Goyal, Advocate for the petitioner(s).

Mr. Amandeep Singh, DAG, Punjab.

Click here to read/download the order