Case Note & Summary
The petitioners challenged the order of taking cognizance in a cheque dishonour case under Section 138 of Negotiable Instruments Act, 1881, contending that the Magistrate violated mandatory procedure under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by not issuing notice to accused and hearing them before taking cognizance. The High Court examined Sections 4, 5, 223 and 531 of BNSS, 2023 and held that Section 5 contains a savings clause that preserves special procedures under other laws. Since Negotiable Instruments Act, 1881 is a special statute with its own procedure for taking cognizance, the general procedure under BNSS, 2023 does not apply. The Court distinguished between mandatory and directory provisions, finding that the proviso to Section 223 of BNSS, 2023 is not mandatory for special statutes. The petition was dismissed
Headnote
Criminal Law-- Code of criminal Procedure, 1973-- Section 200-- Negotiable Instruments Act, 1881-- Sections 138, 142, 143-- BNSS, 2023-- Sections 4, 5, 223 and 531 -- Complaint u/s 138 of NI Act filed by respondent/complainant-- Petitioners were original accused in the complaint-- Ld. Magistrate took cognizance and issued process to the petitioners/accused-- Order of taking cognizance challenged by the petitioners/accsued in revision before high court-- Rejection of revision-- Aggrieved-- Challenged-- Contention as to no opportunity of hearing afforded to the petitioners before taking cognizance-- Provisions of Sections 4, 5 and 223 of BNSS referred-- Examination of complainant u/s 200 of CRPC-- Provisions of Section 200 of CRPC as to examination of complainant replaces in Section 223 of BNSS-- Cases of different high courts referred-- Power of court to try cases summarily u/s 143 of NI Act-- No requirement of issuing summons to the accused u/s 223 of BNSS at the pre-cognizance stage-- No warrant of following the procedure u/s 223 of BNSS for a summary trial for offence u/s 143 of NI Act-- No need to hear accused before taking cognizance-- No intereference-- Petition rejected Para-- 6, 7, 8, 8.4, 9, 10
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Issue of Consideration: Whether the procedure prescribed under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) regarding issuance of notice to accused and hearing before taking cognizance is mandatory for offences under Negotiable Instruments Act, 1881
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Final Decision
The High Court dismissed the criminal petition -- The Court upheld the orders of the Magistrate and revisional Court taking cognizance --
