ORDER : 1. This petition takes exception to the impugned order at Annexure - A dated 26.03.2025 passed in PCR No.9136/2024 by XLII Additional Chief Judicial Magistrate, Bengaluru, whereby the learned Magistrate directed issuance of notice to the petitioner in terms of proviso to Section 223(1) of BNSS, 2023. 2. Brief facts giving raise to the present petition are that the respondent - complainant filed memorandum of complaint dated 15.07.2024 under Section 223 of BNSS, 2023, against the petitioner - accused for alleged offence under Section 356 of BNSS, 2023. In the first instance, the Trial Court vide order dated 16.07.2024 took cognizance and issued summons to the petitioner, who approached this Court in Crl.P.No.7526/2024, which was allowed and disposed of vide order dated 27.09.2024 remitting the matter back to the learned Magistrate for reconsideration afresh in accordance with law. 3. In pursuance of the same, learned Magistrate once again passed an order dated 03.12.2024 and issued a notice in terms of proviso to Section 223(1) of BNSS, 2023 to the petitioner - accused without enclosing copies of the complaint, documents, sworn statements etc., so as to enable the petitioner to have his say in the matter. Under these circumstances, alleging that there were violation of principles of natural justice, which are inbuilt into the proviso to Section 223(1) of BNSS, 2023, the petitioner once again approached this Court in Crl.P.No.13872/2024, which was allowed and disposed of vide final order dated 07.03.2025 once again remitting the matter back to the learned Magistrate for reconsideration afresh in accordance with law. 4. Subsequently, the learned Magistrate proceeds to pass the impugned order dated 26.03.2025 directing issuance of notice to the petitioner as per proviso to Section 223 of BNSS, 2023. Aggrieved by the impugned order dated 26.03.2025 directing issuance of notice to the petitioner, he is before this Court by way of the present petition. 5. 4. Subsequently, the learned Magistrate proceeds to pass the impugned order dated 26.03.2025 directing issuance of notice to the petitioner as per proviso to Section 223 of BNSS, 2023. Aggrieved by the impugned order dated 26.03.2025 directing issuance of notice to the petitioner, he is before this Court by way of the present petition. 5. Learned counsel for the petitioner would reiterate the various contentions urged in the petition and refer to the material on record including the impugned order in order to point out that despite specific directions issued by this Court on two occasions directing the learned Magistrate to follow the procedure prescribed under Section 223 of BNSS, 2023, learned Magistrate has committed a grave and serious error in holding that the complainant had filed complaint by invoking Sections 500, 501 and 502 of IPC, which is factually incorrect in as much as respondent - complainant had actually invoked Section 356 of BNSS, 2023 and not Sections 500, 501 and 502 of IPC. It is submitted that the fact that the learned Magistrate has erroneously come to the conclusion that the respondent had invoked Sections 500, 501 and 502 of IPC is apparent from the fact that the learned Magistrate proceeds to invoke proviso to Section 223(1) of BNSS, 2023 by relying upon Section 531 of BNSS, 2023. It is therefore submitted that the impugned order which is contrary to the earlier directions issued by this Court as well as provisions contained in Section 223 of BNSS, 2023, deserves to be set aside and the matter be remitted back to the learned Magistrate for reconsideration afresh in accordance with law. 6. Per contra, learned counsel for the respondent would support the impugned order and submitted that there is no merit in the petition and the same is liable to be dismissed. 7. Before adverting to the rival contentions, it would be necessary to advert to the earlier orders passed by this Court between the parties. 8. The order dated 27.09.2024 passed in Crl.P.No.7526/2024 is extracted as under:- "The petitioner is before this Court calling in question an order dated 16-07-2024 passed by the 42 nd 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. 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. 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. 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: 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; (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 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. 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 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 Accused 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. 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. (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." 9. The order dated 07.03.2025 passed in Crl.P.No.13872/2024 is extracted as under:- "This petition is filed by the petitioner, who is arrayed as an accused in PCR No.9136/24 filed by the respondent - complainant for the offence punishable under section 356(2) of the Bharatiya Nyaya Sanhita, 2023. 2. It is the case of the petitioner that respondent - complainant, who is a Member of Legislative Assembly lodged a complaint with the jurisdictional Magistrate against the petitioner for having made defamatory speech at an election rally. The petitioner questioned the issuance of summons to him on the ground that the procedure as contemplated under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (' BNSS, 2023 ' for short) was not strictly followed. 3. I have heard learned counsel - Sri Venkatesh P Dalwai for the petitioner as well as learned Senior Counsel - Sri Ravi B. Naik representing learned counsel - Smt. Vijetha R. Naik for the respondent. 4. It is contention of Sri Venkatesh P. Dalwai, learned counsel for the petitioner that this Court while allowing the earlier petition filed by the present petitioner in Crl.P No.7526/2024, quashed the order dated 16 th July 2024 passed by the learned Magistrate in PCR No.9136/2024 and remitted matter the 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, by fixing the time limit. 5. 5. It is further contention of learned counsel that despite a specific order passed by this Court to comply with the provisions of Section 223 of BNSS, 2023, copies of the complaint, sworn statement and other relevant materials were not served on the petitioner. It is also contended that on perusal of Annexure-D, it is seen that the notice issued to the petitioner on the complaint filed by himself and thus, there is a flaw and error committed in the notice as the complainant and the accused shown in the notice are one and the same and the said notice is signed by the learned Presiding Officer. Therefore, he contends that the provisions of Section 223, BNSS though ordered to be strictly followed, has not been complied diligently and on the contrary, notice is issued which depicts that the complaint is filed by the petitioner and the same is issued to the petitioner himself as an accused in the said case, which itself clearly depicts that there is absolute non-application of mind. Hence, the order impugned is illegal and requires to be quashed. 6. Per contra, learned senior counsel - Sri Ravi B Naik on behalf of Smt. Vijetha R. Naik representing the respondent contends that private complaint has been filed by the respondent/complainant - Sri Shivananda S. Patil in PCR No.9136/2024 as per Annexure-B and the learned Magistrate issued notice to the petitioner/accused - Sri Basanagoud R. Patil Yatnal vide Annexure-D. However, the name of the complainant has been wrongly mentioned as Sri Basanagoud R. Patil Yatnal in lieu of Sri Shivananda S. Patil in the notice - Annexure-D and therefore, the complainant and the accused shown in the notice are one and the same, which is purely a typographical error by inadvertence. Therefore, on that ground, the impugned order directing issuance of notice to the accused, cannot be quashed for non-compliance of provisions of Section-223 of BNSS, 2023 as all other requirements are duly followed. Therefore, he seeks to dismiss the petition. 7. I have given my thoughtful consideration to the arguments advanced by learned counsels for the parties. 8. It is not in dispute that this is the 2 nd round of litigation. Therefore, he seeks to dismiss the petition. 7. I have given my thoughtful consideration to the arguments advanced by learned counsels for the parties. 8. It is not in dispute that this is the 2 nd round of litigation. In an earlier petition filed by the present petitioner in Crl.P 7526/24, this Court allowed the criminal petition, quashed the impugned order dated 16.7.2024 in PCR No.9136/2024, remitted the matter back to the learned Magistrate to redo the exercise afresh from the stage of entertainment of the complaint, keeping in mind the observations made by the Court in the said order. This Court at paragraphs 10 and 11 of the order has laid down the procedure to be followed as under: "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 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." 9. The issue that is before this Court, at this juncture, is not on the merits of the matter. After the matter was remanded, the learned Magistrate ought to have kept in mind the directions issued by this Court while complying with the requirements of Section 223 of BNSS, 2023 strictly. The issue that is before this Court, at this juncture, is not on the merits of the matter. After the matter was remanded, the learned Magistrate ought to have kept in mind the directions issued by this Court while complying with the requirements of Section 223 of BNSS, 2023 strictly. On perusal of the impugned order, it is seen that the complainant is examined as CW.1 and two other witnesses by name Mohammed Isaq and Sri Shanthakumar are examined as CW.2 and CW.3 under Section 223 of BNSS,2023 and before taking cognizance, trial Court issued notice to the accused. But, on careful perusal of the notice issued to the accused vide Annexure-D, it is seen that there is a flaw and error committed in the notice as the complainant and the accused shown in the notice are one and the same and the said notice is signed by the Presiding Officer. It is also seen that no materials are placed before the Court to show as to whether copies of the complaint, sworn statement, statements of witnesses of CW.2 and CW.3 have been served or furnished to the petitioner - accused. Therefore, there is a clear non-application of mind while issuing notice to the accused, and violation of the prescribed procedure. 10. Under the circumstances, this is a fit case to be allowed for having not followed the procedure and the guidelines as contemplated under Section-223 of BNSS, 2023 and also the directions issued by this Court in Writ Petition No.7526/2024 dated 27 th September 2024 at paragraph Nos.10 and 11 stated hereinabove. Accordingly, I pass the following ORDER i) The petition is allowed ii) The impugned order dated 3.12.2024 passed by the XLII Addl. Chief Judicial Magistrate, Bengaluru city, in PCR No.9136/2024 insofar as issuance of notice to the petitioner - accused for the offence punishable under Section 356(2) of the Bharatiya Nyaya Sanhita, 2023 vide Annexure-'A', is hereby set aside. iii) The matter is remitted back to the learned Magistrate to reconsider the matter afresh from the stage of issuance of notice to the petitioner - accused by following the procedure contemplated under Section 223 of BNSS, 2023 so also the directions issued by this Court in Criminal Petition No.7526/2024 dated 27 th September 2024, strictly in accordance with law. iii) The matter is remitted back to the learned Magistrate to reconsider the matter afresh from the stage of issuance of notice to the petitioner - accused by following the procedure contemplated under Section 223 of BNSS, 2023 so also the directions issued by this Court in Criminal Petition No.7526/2024 dated 27 th September 2024, strictly in accordance with law. iv) It is needless to mention that the learned Magistrate shall apply his mind while issuing the notice to the petitioner - accused, in accordance to Section 223 of BNSS. 2023. v) It is made clear that this Court has not expressed any opinion on the merits of the matter. Ordered accordingly." 10. In pursuance of the aforesaid orders, learned Magistrate passed the impugned order, which is as under:- "Complainant is absent. This complaint is filed against the Accused alleging the offence P/U/Sec.500, 501, 502 of IPC. This complaint was filed on 11.07.2023 i.e., after coming into force of the BNSS, 2023. As such as provided U/Sec.531 of BNSS, 2023, it shall proceed under the provisions of BNSS, 2023. Accordingly, the complainant is examined as CW-1 and two witnesses by name Sri. Mohammed Isaq and Sri. Shanthakumar are examined as CW-2 and 3 U/Sec.223 of BNSS, 2023. As per the proviso to Sec.223 of BNSS, 2023, before taking cognizance, it is necessary to hear the accused. Hence, issue notice to the Accused as per proviso to section 223 of BNSS, 2023 through RPAD. The complainant shall furnish PF and copies of complaint, documents and sworn statements. For hearing, call on 09.04.2025." 11. A perusal of the impugned order assailed in the present petition bearing in mind the earlier orders passed by this Court would clearly indicate that the learned Magistrate has not applied his mind and has erroneously held that the complaint was filed by the respondent under Sections 500, 501 and 502 of IPC and since the same was filed on 11.07.2023 after BNSS, 2023 came into force, the case will have to be proceeded under BNSS, 2023 in view of Section 531 of BNSS, 2023. In this context, the learned Magistrate has failed to consider and appreciate the averments made in the complaint wherein the respondent specifically states that he had invoked Section 356 of BNSS, 2023 and not Sections 500, 501 and 502 of IPC, as wrongly cited by the learned Magistrate, which clearly indicates non-application of mind warranting interference by this Court in the present petition, especially when the earlier directions issued by this Court also had not been properly followed by the learned Magistrate. Under these circumstances, I am of the view that the impugned order deserves to be set aside and the matter be remitted back to the learned Magistrate for reconsideration afresh in accordance with law. 12. In the result, I pass the following:- ORDER : (i) The petition is hereby allowed. (ii) The impugned order dated 26.03.2025 passed in PCR No.9136/2024 by XLII Additional Chief Judicial Magistrate, Bengaluru, at Annexure - A is set aside. (iii) The matter is remitted back to the learned Magistrate for reconsideration afresh in accordance with law. (iv) The respondent - complainant shall appear before the learned Magistrate on 16.06.2025 along with his learned counsel. (v) Learned Magistrate shall reconsider the matter afresh and proceed further in accordance with law and pass appropriate orders within a period of two weeks from 16.06.2025 bearing in mind the observations made in the present order as well as earlier orders passed by this Court. (vi) In view of disposal of petition, I.A.No.3/2025 filed for vacating stay does not survive for consideration and the same stands dismissed.