Gujarat High Court

Nili Sheth W/O Siddharth Sheth vs State Of Gujarat on 3 July, 2025

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                             R/SCR.A/7814/2025                                 ORDER DATED: 03/07/2025

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                         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                        R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7814 of 2025
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                                      NILI SHETH W/O SIDDHARTH SHETH
                                                    Versus
                                           STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR HARDIK P MODH(5344) for the Applicant(s) No. 1
                       MR MAULIK VAKHARIYA(6628) for the Applicant(s) No. 1
                       MR UTKARSH R SHARMA(6157) for the Respondent(s) No. 2
                       MR MANAN MAHETA, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                           Date : 03/07/2025
                                                            ORAL ORDER

1. Rule. Learned APP waives service of rule for the respondent-

State.

2. By way of present petition under Article 226 of the Constitution of India read with Section 528 of the BNSS, the petitioner has sought for the following prayers:

"A. Quash and set aside the impugned order dated 07.04.2025 (Annexure P-14) passed by the learned Additional Chief Judicial Magistrate, Ahmedabad City;

B) At the interim/ad-interim stage, this Hon'ble Court may be pleased to stay all further proceedings arising out of the impugned order dated 07.04.2025 (Annexure P-14) passed by the learned Additional Chief Judicial Magistrate, Ahmedabad City."

3. The respondent No.2 - complainant who is a Senior Intelligence Officer, Directorate of Revenue Intelligence, has filed a complaint being Criminal Case No.64846 of 2025 for the offence under Sections 208 and 210 of the Bharatiya Nyaya Sanhita,

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R/SCR.A/7814/2025 ORDER DATED: 03/07/2025

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2023 (for short "BNS") read with Section 108 of the Customs Act, 1963, against the present petitioner, wherein, the learned Magistrate was pleased to pass an order below Exh.1 and come to a conclusion that the complainant is a Government Agency and therefore, there is no need to take verification of complainant as per Section 223(a) of the Bharatiya Nagarik Suraksha Sanhita (for short "BNSS") and was pleased to register the complaint and issue the summons under Sections 208 and 210 of the BNSS read with Section 108 of the Customs Act, 1963, on 07.04.2025.

4. Being aggrieved and dissatisfied by the impugned order, the petitioner has approached this Court on the ground that without giving an opportunity under Section 223 of the BNSS to the petitioner, straightaway the learned Magistrate has taken the cognizance.

5. Prima facie, this Court is of the considered view that Section 223 of the BNSS came into force with effect from 1 st July, 2024, which reads thus :

"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 -

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(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."

6. Earlier the said provision does not find place in Section 200 of the Code of Criminal Procedure. Now, as per the enactment, prior to taking the cognizance, the Magistrate is duty bound to give an opportunity of being heard to the accused as per sub- section (1) of Section 223 of the BNSS which puts an embargo on the powers of the Court to take cognizance and without giving an opportunity of hearing, the learned Magistrate has taken the cognizance. Admittedly, an opportunity of being heard was not given by the learned Magistrate to the present petitioner - accused before taking the cognizance on the said ground and considering the statutory provision of Section 223 of the BNSS and in light of the judgment passed by the Hon'ble Apex Court in the case of Kushal Kumar Agarwal Vs. Directorate of Enforcement [2025 INSC 760], present petition deserves consideration.

7. In the result, present petition is allowed. The impugned order dated 07.04.2025 passed by the learned Additional Chief Judicial Magistrate, Ahmedabad City is hereby quashed and set aside. Petitioner - accused is directed to appear before the learned Magistrate on 21.07.2025. The learned Magistrate is directed to give an opportunity of being heard to the petitioner

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in terms of proviso of Section 223(1) of the BNSS and pass an appropriate order. Direct service is permitted.

(HASMUKH D. SUTHAR, J.)

Ajay