Court Highlights Non-Compliance with Mandatory Procedures Under Bharatiya Nagarik Suraksha Sanhita, 2023
In a significant decision, the Jammu and Kashmir High Court, presided over by Justice Moksha Khajuria Kazmi, has stayed the proceedings initiated against filmmakers Aditya Dhar and others, who were accused of defamation by Ghulam Mohammad Shah. The case arose from allegations that a film produced by the petitioners, titled "Article 370," used a photograph of the respondent and depicted him as a terrorist, causing harm to his reputation.
The respondent had filed a complaint under Section 210 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, prompting the Forest Magistrate in Srinagar to issue pre-cognisance summons against the petitioners. However, the High Court found that the Magistrate did not adhere to the mandatory procedural requirements under Sections 223 and 226 of the BNSS, 2023.
The court emphasized that before taking cognizance of an offence, the Magistrate must examine the complainant and witnesses on oath, and reduce their statements to writing, ensuring they are signed by the complainant, witnesses, and the Magistrate. Additionally, the accused must be given a fair opportunity to be heard, with notices including the complaint, sworn statements, and witness statements.
Senior counsel for the petitioners argued that these procedural steps were not followed, leaving the accused without the necessary materials to defend themselves. The court concurred, noting that the records from the Forest Magistrate's court revealed a lack of compliance with these procedures.
The judgment references similar interpretations by the High Courts of Allahabad and Karnataka, which also stress the importance of procedural compliance to prevent unnecessary harassment of accused individuals and to ensure a fair hearing.
Justice Kazmi's order highlighted that the non-compliance with the statutory provisions rendered the pre-cognisance notice unsustainable. As a result, the High Court has stayed the proceedings until the next hearing scheduled for March 23, 2026, granting the petitioners temporary relief.
Bottom Line:
The procedure under Section 223 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mandates that before taking cognizance of an offence, the Magistrate must record sworn statements of the complainant and witnesses, issue notice to the accused, and provide copies of the complaint and other relevant material to ensure the accused is given a fair opportunity to be heard.
Statutory provision(s):
Bharatiya Nagarik Suraksha Sanhita, 2023 Sections 223, 226, 210, 356
Aditya Dhar v. Ghulam Mohammad Shah, (Jammu And Kashmir)(Srinagar) : Law Finder Doc id # 2850053
