Madras High Court
Seeman vs Varun Kumar on 27 November, 2025
CRL RC(MD)No.772 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.08.2025
PRONOUNCED ON : 27.11.2025
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
CRL RC(MD)No.772 of 2025
and
CRL MP(MD)Nos.8352 and 10746 of 2025
Seeman ... Petitioner
Vs.
Varun Kumar ... Respondent
PRAYER: Criminal Revision Petition is filed under Section 438 r/w 442
of BNSS, to call for the records pertaining to the order passed in
Crl.M.P.No.33131 of 2024 dated 04.06.2025 by the learned Judicial
Magistrate No. IV, Tiruchurappalli and set aside the same.
For Petitioner : Mr.V.Ramamurthy,
For Respondent : Mr.V.Raghavachari,
Senior counsel,
For M. Jegadeesh Pandian
ORDER
Prologue:
This Criminal Revision, at the instance of a political leader, 1/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 Thiru.Seeman, Chief Co-ordinator of Naam Tamilar Katchi, arraigned for defamation, calls for scrutiny of a pre-cognizance procedure under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the limits of criminal law to police political speech; and the appropriate role of police officers when their official actions invite criticism. The core issue is whether the learned Judicial Magistrate No. IV, Tiruchirappalli, in Crl.M.P. No. 33131 of 2024, validly “took cognizance” of an offence of defamation alleged under the Bharatiya Nyaya Sanhita (BNS), cited in the impugned order as Section 356(1) of BNS, after administering oaths and recording statements, without first extending a meaningful opportunity of hearing to the accused as mandated by Section 223 BNSS, 2023, and whether the order survives revisional scrutiny given the constitutional protection of robust political expression.
2. To be specific, this case brought by Thiru.Seeman, a political leader, against a private complaint of defamation instituted by Thiru. Varun Kumar, IPS, presents more than a procedural contest under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It engages foundational questions at the heart of our constitutional order, the scope of a politician’s right to criticise bureaucratic action, the duty of a career civil servant to absorb criticism that attends official decision- 2/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 making, and the limits of criminal process when deployed at the pre- cognizance stage in a politically charged environment.
Gamut of the complainant’s case before the learned Trial Court:
3. The private complaint was presented by Thiru.Varun Kumar, IPS, narrating his academic and service credentials and his tenure as Superintendent of Police in multiple districts. He traced political events following action against one “Sattai” Durai Murugan (of Naam Tamilar Katchi) in 2020 and, later, his arrest on 11.07.2024 in Trichy District Cyber Crime P.S. Crime No. 34 of 2024. The complaint alleges that, on 11.07.2024, immediately after the said arrest, Thiru.Seeman addressed the media and made an allegedly defamatory statement in Tamil, portraying the complainant as “casteist by birth” and imputing discriminatory bias. The statement was said to be widely broadcast on television channels, social media, and YouTube, allegedly causing reputational harm among family, friends, colleagues, and the general public. The exact Tamil version of the alleged statement is extracted as follows:
“ tUz; v';f Ch;fhuU/ cug;g[spfhuh;/ bjhlh;r;rpah 3/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 mtU tpisahl;L/ buhk;g mjpfkhd tpisahl;L/ njth;. ehlhh;. nfhdhh;. njnte;jpuh;. ahiua[nk mtUf;F gpof;f khl;nl';FJ/ gpwg;g[ btWg;g[ mtUf;F ,t';f nkny vy;yhk;/ ntW ,lj;jpy; tHf;F. brd;idf;F bfhz;L tu brhy;yp Fz;lh!py; nghl;lJ. ,nj tUz; IPS jhd;/ ,g;gt[k; mtiu ifJ gz;zp jpUr;rpf;F bfhz;ltuJk; tUz; IPS jhd;. ,jbay;yhk;
kwe;jpLnthnkh? ”
4. It is stated that a legal notice was issued by the complainant on 30.07.2024, for which a reply dated 06.08.2024 and a subsequent communication dated 22.08.2024, were received from the accused. The complaint further refers to Thillai Nagar, Trichy P.S. Crime No. 547 of 2024, Sections 55, 61, 224, 351(ii), 352, 353(ii) BNS, and Section 67 of the IT Act, registered on 29.07.2024, said to relate to connected publications/handles.
5. On the complainant’s side, a sworn statement was recorded, and the complainant was examined as PW-1 and Ex.P1 to Ex.P7 were marked. PW-2 to PW-4 were examined as witnesses to the 4/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 publication/impact of public interview.
6. The complaint invoked Section 223 BNSS and requested the Magistrate to take cognizance for defamation under the BNS (cited as Section 353/356) and issue process.
Gist of the order passed by the learned Trial Court:
7. The learned Magistrate, after recording sworn statements, issued summons to the accused. On objections being filed, the following three issues were framed: (i) territorial jurisdiction; (ii) whether the complainant must personally see/hear the impugned words; (iii) whether the statement falls within Exception 3 (good-faith comment on public questions) under Section 356 BNS,2023.
8. Relying on Section 179 Cr.P.C., 1973, jurisprudence R. Bhagwan Singh Vs Indian Institute of Technology1; Subhiksha Trading Services Ltd. and another vs Azim.H.Premji2; State of Madhya Pradesh Vs Suresh Kaushal3; Bangarappa Vs Ganesh 1 (2009) SCC OnLine Mad 661 2 (2009) SCC OnLine Mad 1629 3 2001 AIR SCW 4587 5/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 Narayan Hegde4; Dr. Subramanian Swamy v. Prabhakar5), the Magistrate upheld territorial jurisdiction on the basis that consequences ensued within Tiruchirappalli, where the complainant resides and where the interview/publication was accessible.
9. On personal hearing of the words, the learned Magistrate held that publication to third parties suffices for defamation and personal hearing by the complainant is not required (relying on Mohammed Abdulla Khan v. Prakash K.6). On Exception 3, the learned Magistrate held that exceptions are matters of defence to be proved at trial (placing reliance on Subramanian Swamy v. Union of India7 and, therefore, not a bar to cognisance. Concluding that “grounds exist for proceeding,” the learned Magistrate took cognisance and ordered continuation of the complaint.
Grounds of Revision:
10. The petitioner assails the order on multiple grounds, which are given briefly as follows :
4 1984 Cri LJ 1618 5 1984 Cri LJ 1329 6 (2017) SCC OnLine SC 1422 7 (2016) 7 SCC 221 6/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 10.1. Section 223 BNSS breach: Cognisance was taken without first affording a real and meaningful opportunity to the accused, reducing the statutory hearing to an empty ritual. The Court administered oaths, evaluated materials took cognisance by issuing summons and only thereafter heard objections before re-affirming cognisance amounting to taking cognisance twice, as held in T.M. Rajendran v. C.A. Reddy8.
10.2. Misapplication of “cognisance” law: By relying on sworn statements under the very chapter dealing with post-application steps, the learned Magistrate evinced application of mind to proceed in a particular way, as demonstrated in R.R. Chari v. State of U.P.9, Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abni Kumar Banerjee10, further affirmed in Dr. Subramanian Swamy v. Dr. Manmohan Singh11, and only thereafter extended a hearing, contrary to Section 223 BNSS’s proviso.
10.3. Jurisdiction & Section 225 BNSS: The accused resides 8 1993 LW (Crl) 72 9 1951 SCR 312 10 AIR 1950 CAL 437 11 2012 (1) SCC 1041 7/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 outside jurisdiction; a calibrated Section 225 inquiry to prevent forum shopping was required but not undertaken.
10.4. Multiplicity/parallel proceedings: With connected FIR(s) pending on the same substratum, a private complaint of defamation risks abuse, as substantiated in Krishna Lal Chawla v. State of U.P.12.
10.5. AIS Conduct Rules: Proceedings wearing an official colour (IPS designation in notice/pleadings) allegedly required prior governmental permission.
10.6. Free political speech: The impugned words, in context, constitute political comment on official conduct. The criminal process cannot be weaponised to chill opposition speech.
Submissions:
11. The submissions of the learned counsel Mr.V.Ramamurthy 12 (2021) 5 SCC 435) 8/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 appearing for the Petitioner/Accused are crystallised as follows:
11.1. Categorically contending that, public-duty criticism is not actionable as personal defamation, the learned counsel pressed that, the statements, made by the petitioner, related to performance of public duties by a Government servant. Public officials are expected to tolerate scrutiny/criticism regarding official acts. Relying upon R. Rajagopal v.
State of TN13, he pointed out that, public officials have limited remedies for statements touching official conduct and that the law dis- favours chilling criticism of officials.
11.2. He placed reliance on Rule 17 of the All India Services (Conduct) Rules, 1968, and contented that under this rule a Government servant must obtain prior sanction to initiate such proceedings. But the respondent proceeded without permission. He carefully pointed out that, even if couched as “personal,” the notice and complaint were on the letterhead/description “Varun Kumar, IPS, Superintendent of Police.” The substance and content having shown institutional colour, permission becomes mandatory. In the absence of sanction, he contended that the complaint is incompetent. 13 1994 SCC (6) 632 9/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 11.3. Further explaining that, the opportunity is substantive, not ritual, under Section 223 BNSS, the learned counsel insisted that, the proviso to Section 223 is a statutory in-built safeguard post-BNSS to curb abuse of private complaints. Elaborating that “Opportunity of being heard” means (i) supply of complaint, sworn statements, and annexures; (ii) a meaningful chance to file objections; and (iii) a reasoned consideration of those objections “before” cognizance, he pointed out that, here, copies were not furnished before cognizance; the objections were not dealt with “in proper perspective”, issues were framed narrowly, and the impugned order reproduces content but does not engage specific jurisdictional and statutory objections. He stressed that, post-BNSS, the hearing is not an empty formality.
11.4. Contending that the alleged circumstances would squarely fall under exception 3 to Section 356 of BNS,2023, he submitted that, the statements were fair comment, in good faith, answering press queries. He made it clear that, the impugned words, if any, were responses to reporters’ questions during an open press interaction, interestingly a classic arena for opinion/fair comment on public functionaries. He also pointed out that, the context of the alleged interview included multiple episodes: transfers, mass arrests, bail 10/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 orders criticising police actions, revocation of preventive detention (Goondas) by the Advisory Board, and alleged selective registration of cases against party workers, forming a good-faith belief. Thus, he claimed that, the case falls within statutory exceptions (good faith/public interest), defeating mens rea. He forcefully argued that, at minimum, the learned Magistrate should have weighed the exception context at the pre-cognizance inquiry mandated by Sections 223/225 of BNSS, 2023.
11.5. Pointing out that the accused resides outside the Magistrate’s jurisdiction, the learned counsel submitted that, BNSS Section 225 obligates the Court to conduct a careful inquiry/scrutiny to prevent forum shopping, examining where the alleged publication occurred, where harm ensued, and whether jurisdictional facts are pleaded and sworn. He also drew my attention that, the complaint and sworn statement are silent or vague on the specific jurisdictional hooks and that the Magistrate did not conduct the deeper Section 225 inquiry.
11.6. Additionally, he pointed out that, there were already FIR(s) about connected allegations (e.g., Crime No. 547/2024 and a few 11/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 others), in which case, the learned Magistrate should have probed duplication/abuse and recorded why a private complaint should proceed in parallel. He cautiously submitted that, when FIRs covering the same substratum are pending (including serious statutory regimes like the SC/ST Act, and IT Act), lodging a private complaint on overlapping facts risks abuse.
11.7. He categorically contended that, pre-summoning evidence is inadequate and witnesses don’t establish the charge. Pointing out that, PW-2 (complainant’s friend) misdated the occurrence and read from a paper, putting his credibility at stake, he also drew my attention to the testimony of PW-3 (Sub-Inspector), who admitted that it was a general interview and insisted that the same does not affirm specific defamatory imputation. He further contended that the testimony of PW-4 likewise does not corroborate the specific words constituting defamation. Thus, he submitted that, without reliable, specific proof of the exact statement, publication, and intention, prima facie case is not made out even for cognizance/summons.
11.8. The learned counsel further placed materials, including 12/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 news clippings, bail orders, social media posts allegedly by the respondent inviting public comments, etc., to show perceived political non-neutrality and episodes where Courts refused remand or revoked Goondas detention against party workers.
11.9. He also categorically submitted that, if a senior police officer publicly engages/interacts on social media and invites comments, a robust political response is foreseeable and that the petitioner’s remarks were policy/administration-oriented, not personal abuse. He further drew my attention that, the respondent himself gave interviews allegedly belittling the petitioner, and if those provocations exist, the petitioner’s retort gains context, undermining mens rea.
11.10. The learned counsel further submitted that, the notice itself describes the complainant as “Varun Kumar, IPS, Superintendent of Police” and insisted that the pleading repeatedly ties reputation to office and official actions. He categorically contended that, a Government servant cannot circumvent Conduct Rules by later re- characterising the dispute as “purely personal” when the alleged hurt flows from official acts. Absence of permission is fatal. Last but not the least, he pressed for setting aside the cognisance/impugned order for: 13/58
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a)Non-compliance with Section 223 proviso (no meaningful hearing; copies not supplied in time; objections not addressed);
b)Failure to conduct Section 225 inquiry for outside-jurisdiction accused;
c)Inadequate pre-summoning evidence;
d)Parallel/duplicative proceedings abuse;
e)AIS Rules infraction.
f)Alternatively, remit with directions: furnish a full set of materials; permit comprehensive objections; require a reasoned order on Section 223/225, taking into account the Exceptions plea and jurisdictional facts.
12. The arguments of the learned Senior Counsel Mr. Raghavachari for Mr.Jagadeesh Pandiyan appearing for the Respondent/Complainant are crystallised as follows:
12.1. The learned Senior Counsel lamented that, he is at loss to understand, how the accused is seeking cross-examination of witnesses “at this stage.” Categorically contending that, the said exercise is 14/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 impermissible, he pointed out that, there cannot be two trials, one pre-
cognizance and another post-cognizance. He insisted that, BNSS contemplates expeditious culmination, not a roving inquiry before cognizance.
12.2. The proviso to Section 223 BNSS requires an “opportunity of being heard” before cognizance, not a right to cross-examine or to conduct a full evidentiary hearing. Contending that revisional scrutiny is narrow, the learned senior counsel explained that, the Court tests whether the learned Magistrate applied his mind to the materials and the statutory pre-conditions. On that test, he contended that the order stands, and he was loud in submitting that the accused’s merits-based defences belong to the trial.
12.3. The learned senior counsel elaborated that, the learned Magistrate framed the following three issues: (i) territorial jurisdiction;
(ii) whether personal hearing of complainant’s “seeing/hearing” is mandatory under Section 356 BNSS; (iii) whether Exception 3 to Section 356 applies. He further submitted that, the accused actually raised three objections below: (1) complainant did not personally see/hear the statements; (2) the speech falls under Exception 3 (answer to press questions); (3) absence of wilful/wanton intent. 15/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 12.4. Categorically submitting that, these objections were entertained and overruled issue-wise, further insisted that itself shows that the Section 223 opportunity was afforded and availed. He drew my attention to Paragraph 4.5 of the impugned order addressing territorial jurisdiction and other paragraphs dealing with issues (ii) and (iii).
12.5. In defamation law, the learned senior counsel contended that, publication to third parties suffices; the complainant need not personally witness the utterance. Statements were televised, widely published, and viewable on YouTube; newspapers carried them; the Magistrate noted public dissemination.
12.6. The learned senior counsel emotionally argued that, the gravamen is a personal slur: the accused called the complainant a “casteist” (“ gpwg;g[ btWg;g[… right from birth”), imputing an in-built, lifelong bias, demeaning his character and social standing among friends, family, and community across castes.
12.7. He further explained that, the Complaint paragraphs emphasise personal defamation of “Varun” as an individual, not institutional criticism of “SP/IPS.” The impact is upon relatives and 16/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 colleagues questioning if he is a casteist, causing deep reputational harm. Therefore, the learned senior counsel insisted that, Rule 17 of the All India Services (Conduct) Rules requiring prior Governmental permission (for official-capacity proceedings) does not apply. This is a private complaint to vindicate personal reputation.
12.8. The learned senior counsel categorically contended that, the defense leans on Exception 3 to Section 352 BNSS (akin to fair comment/good-faith opinion) and pointed out that, as per Subramanian Swamy v. Union of India14, the burden to prove an exception is on the accused and arises at trial, not at cognisance. Pointing out that, the accused’s own notice-reply does not deny authorship; he claims public interest/fair comment. That squarely triggers a triable issue; it cannot defeat cognisance.
12.9. The learned senior counsel further submitted that, the private complaint under Section 356 BNSS (defamation) is distinct from police FIRs invoking other enactments (e.g., IT Act provisions, SC/ST Act, etc.), which are of different nature, ingredients, and purpose. He 14 (2016) 7 SCC 221 17/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 categorically insisted that, T.T. Antony v. State of Kerala15 – style “second FIR” objections do not apply to a private defamation complaint resting on a specific publication.
12.10. As far as the question of territorial jurisdiction, the learned senior counsel submitted that, the learned Magistrate analysed place- of-publication/impact and answered territorial jurisdiction with authorities (para 4.5. of the impugned order). That finding is reasoned and not perverse at this stage.
12.11. The learned senior counsel drew my attention to B-Diary extracts, initial notice, returned “unclaimed,” appearance by counsel, copies furnished, objections taken, both sides heard, order reserved and delivered later. Therefore, he said the contention of the defence that “no copy/no hearing” is inaccurate and submitted that no prejudice has been demonstrated. He reiterated that, the B-Diary reflects that notice was issued, counsel had appeared, copies were furnished, and objections were heard. Hence, Section 223 compliance stands. 15(2001) 6 SCC 181 18/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 12.12. He further summarised his arguments as follows: a.) Defamation is complete upon publication to third parties; b.) the complainant need not personally hear the words. c.) Exceptions are matters for trial; d.) the learned Magistrate rightly refrained from a mini-trial. e.) Territorial jurisdiction is sound under Section 179 Cr.P.C., 1973, jurisprudence (publication consequences in Trichy). f.) The imputations are personal, caste-based slurs, not policy critique; hence, the private complaint is competent; g.) AIS Rules are inapplicable.
13. The learned Additional Public Prosecutor Mr.S.Ravi assisted this Court and supported maintenance of jurisdictional finding; left the Section 223 compliance issue to Court’s determination.
14. Heard the learned counsel for the petitioner, the learned senior counsel for the respondent, the learned Additional Public Prosecutor and carefully perused the materials available on record.
15. Points for Consideration:
(i) Whether the learned Magistrate complied with Section 223 19/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 BNSS, i.e., afforded a meaningful, pre-cognisance opportunity of being heard to the accused before deciding to proceed on the complaint?
(ii) Whether, on the admitted sequence, the learned Magistrate took cognisance twice, first on sworn statements and again after objections, thereby vitiating the order?
(iii) Whether the learned Magistrate failed to discharge the obligations akin to Section 225 BNSS to guard against forum shopping and multiplicity, given the accused’s residence outside jurisdiction and connected FIRs?
(iv) What contours of constitutional protection of political speech and the appropriate response of police officials ought to guide the threshold evaluation?
Analysis:
16. The Statutory Sequence under Section 223 BNSS:
Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is a newly introduced architecture which codifies a pre-cognizance hearing in private complaints, an advance safeguard against frivolous or vexatious prosecutions. This Court makes it clear that the legislative 20/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 purpose is plain. Before a Magistrate applies his mind to proceed in the manner contemplated in Chapter XVI “Complaints to Magistrates” (i.e., recording the complainant on oath, holding an inquiry, or issuing process), the accused is to be afforded an opportunity of being heard, well before taking cognisance. This is not a silent, post-facto courtesy; it is an antecedent, meaningful opportunity.
17. In the present case, the impugned order shows that the learned Magistrate adopted the following course of action: (i) administered oaths and recorded the complainant’s side evidence (PW-1 to PW-4; Ex.P1–P7); (ii) issued summons; (iii) thereafter received objections from the accused and framed issues; and (iv) ultimately affirmed the very course already taken. It is needless to state that such a course inverts the statutory design, putting the cart before the horse. The moment a Magistrate records sworn statements with the purpose of proceeding in the complaint pathway and issues summons, he or she has taken cognizance. Any hearing thereafter cannot retro-cure the foundational defect.
18. For better appreciation, Section 223(1) of the BNSS, 2023, is 21/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 extracted as follows:
“223. Examination of complainant.—A Magistrate having jurisdiction while taking cognisance 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 cognisance of an offence under this section 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.” 22/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025
19. For comparison, Section 200 Cr.P.C. (now repealed) read as under:
“200. Examination of complainant.—A Magistrate taking cognisance 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, 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 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them.” 23/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025
20. A comparison of these provisions reveals two crucial changes:
first, the insertion of the words “while taking cognisance” in the opening part of Section 223; and second, the introduction of a new first proviso which mandates that no cognisance shall be taken without giving the accused an opportunity of being heard. Thus, the new edifice of the BNSS, 2023, under Chapter XVI “Complaints to Magistrates”, canvasses and strengthens the right of the proposed accused to an opportunity of hearing at the pre-cognisance stage.
21. Put differently, under the BNSS, the Magistrate is moving through distinct stages “while taking cognisance” in a processual sense. The legislative drafting, adding the word “while” and super-adding the first proviso, indicates that there is now an intermediate stage between mere filing/registration of the complaint and the culmination of cognisance in the form of satisfaction that there is ground for proceeding and issuance of process. It is at this intermediate stage that the proviso operates: before the Magistrate crosses the point of no return in the cognisance continuum, an opportunity of being heard must be afforded to the proposed accused.
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22. On the construction adopted by this Court, therefore, the normal sequence in a complaint case governed by Section 223 BNSS is as follows: (i) filing / registration of the complaint; (ii) examination of the complainant and the witnesses, if any, on oath (iii) reducing the substance of the examination in writing and getting it signed by the complainant, witnesses and the Magistrate himself (iv) issuance of notice to the proposed accused along with the complaint and annexures, sworn statements of the complainant and the witnesses for affording an opportunity of being heard; (v) consideration of such objections or submissions by the proposed accused; (vi) In a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding (vii) only thereafter, if the Magistrate thinks fit to take cognisance of an offence, issue summons/warrant (process) and further steps under Chapter XVII.
23. This Court deems it necessary to delineate, with clarity, the distinction between the issuance of a notice and the issuance of a 25/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 summons by a Court exercising criminal jurisdiction under the Bharatiya Nagarik Suraksha Sanhita, 2023. A notice, particularly one contemplated under Section 223 BNSS in the context of a private complaint, or one issued during any interlocutory stage, is merely an intimation affording an opportunity of being heard before the Court takes cognizance or before it passes an order which may affect the rights of the person concerned. Such notice is procedural or administrative in nature and does not, by itself, compel the physical appearance of the person, nor does it invest the Court with jurisdiction over him as an accused.
24. In contradistinction, a summons issued under the Chapter of the BNSS relating to “Process to Compel Appearance” is a formal judicial act, undertaken only after the Court has taken cognizance and has consciously decided to proceed against the person as an accused. A summons is a coercive process obligating the accused to appear before the Court to answer the accusation and activating the entire statutory machinery of bailable warrant, non-bailable warrant, proclamation and attachment in the event of non-compliance. While notice serves the objective of satisfying natural justice and affording a preliminary or procedural hearing, a summons represents the exercise of the Court’s 26/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 coercive jurisdiction and marks the commencement of the accused’s participation in the criminal trial. Thus, the two concepts operate at distinct procedural stages and carry entirely different legal consequences under the BNSS framework.
25. This Court has conceived a Comparative Table in this regard as follows:
Feature Notice by Criminal Court Summons by
(BNSS, 2023) Criminal Court
(BNSS, 2023)
Statutory Not a “process”.
Arises Issued under
Source under: Chapter on Process
to Compel
Appearance (BNSS
• Section 223 BNSS – equivalents of old
Notice before cognizance in CrPC Ss.61–69).
private complaints.
• Notices in revisions,
appeals, interlocutory
matters.
• Notices before orders
affecting rights.
Procedural Pre-cognizance or
pre- Post-cognizance,
Stage process stage. after Court decides
to act against the
person as an
Also interlocutory stages. accused.
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Legal Procedural / administrative Judicial act
Character intimation; ensures natural compelling
justice. appearance; initiates
trial participation.
Purpose To give an opportunity to be To secure the
heard; to show cause; to presence of the
submit objections before accused before the
Court takes a decision. Court to answer
charges.
Effect on
Status of Person is not yet an Person becomes an
Person accused before the Court; accused and enters
only a proposed or affected the trial process.
person.
Coercive Force No coercive force; Court Full coercive scheme:
cannot issue warrant for Summons --> failure to respond to notice. Bailable Warrant --> NBW --> Proclamation & Attachment.
Consequence Court may proceed ex Non-appearance of Non- parte, dispense with compels issuance of Compliance hearing, or draw adverse warrants and inference. statutory measures.
Examples • Notice to accused under • Summons after
under BNSS S.223 (mandatory hearing cognizance in
before cognizance). complaint cases and
police-report cases
where accused is not
• Notice in discharge in custody.
applications, revisions,
interlocutory petitions.
• Summons to
witnesses under
• Show-cause notices before same chapter.
adverse orders.
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Rights Limited to hearing for the Full rights of an
Triggered specific issue (e.g., pre- accused: copies,
cognizance objection). discharge, framing of
charge, evidence,
trial rights under
BNSS.
Indicative “Notice is issued to the “Summons is issued
Judicial respondent/proposed to the accused to
Language accused to offer appear and answer
explanation/objections.” the accusation on …”
26. This Court clarifies that a notice issued under BNSS, 2023, including under Section 223, is merely an opportunity afforded to a person to present objections before the Court decides whether to proceed further. It does not compel appearance nor confer upon the Court jurisdiction over such person as an accused. A summons, however, is a formal judicial process issued post-cognizance, requiring the accused to appear before the Court, and non-appearance attracts the entire coercive hierarchy of bailable warrant, non-bailable warrant and proclamation.
27. In the context of Section 223 of the BNSS, 2023, this Court underscores that the issuance of a notice to the proposed accused is an antecedent safeguard mandated by the statute. The Magistrate, upon 29/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 receipt of a private complaint, is obligated to afford such person an opportunity of being heard before taking cognizance. This notice is thus purely procedural, intended to satisfy natural justice, and does not amount to issuance of process. Only after the Magistrate applies his judicial mind, records satisfaction under Chapter XVI, and decides to proceed against the person, does the Court enter the domain of coercive process by issuing a summons. The two steps: notice under Section 223 and summons under the Process to Compel Appearance, are distinct, non-interchangeable, and operate at different procedural stages.
28. Hence, in the considered view of this Court, once a private complaint is filed, the Magistrate shall examine the complainant and the witnesses on oath, the next procedure to be adopted ought to be to issuing notice along with the complaint and annexures, sworn statement of witnesses, and calling upon the proposed accused for a pre-cognisance hearing under the first proviso. On this understanding, the impugned order, which reverses this sequence, cannot stand the scrutiny of law, for taking cognisance issuing summons immediately after sworn statements and thereafter receiving the written objections and offering an opportunity of hearing to the proposed accused.
29. The 'B' diary entry made by the learned Trial Court on 30/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 21.01.2025 is as follows: “Complainant called absent. 279 BNSS filed and allowed. Lw6 examined as Pw4. In view of endorsement complainant side evidence is closed. Issue Notice to Respondent. Call on 19.02.2025.” The 'B' diary entry dated 19.02.2025 is extracted as follows: “Complainant present. Accused summon returned as unclaimed, Service of summon is held sufficient. Accused is directed to appear on next hearing. Call on 07.04.2025.” So what was issued by the learned Trial Court had been a summon and not notice. This is further clear from the observation of the learned Trial Court in page No. 4 of the impugned order as to the issuance of summons and not notice.
30. This timing question has already been dealt with by various Courts .The Hon’ble High Court of Karnataka in Basanagouda R. Patil v. Shivananda S. Patil16 and the Hon'ble High Court of Kerala in Suby Antony v. Judicial First-Class Magistrate III17 have, in substance, clarified the proviso as requiring an opportunity of hearing after the complainant and witnesses are examined on oath but before the Magistrate proceeds further to issue process. In Basanagouda R. Patil v. Shivananda S. Patil18, the Karnataka High Court, while emphasising that the proviso cannot be treated as an empty formality, 16 (2024) 4 MLJ (crl) 17 2025: KER : 6236 18 (2024) 4 MLJ (crl) 31/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 held that the notice sent to the accused in terms of the first proviso must append the complaint, the sworn statement, and the statements of witnesses, if any, so that the accused can submit his or her case “before taking of cognizance”.
31. Concurring with that broad approach, the learned Single Judge of the Kerala High Court in Suby Antony v. Judicial First- Class Magistrate III19 observed that, being guided by precedents on Sections 200 and 202 Cr.P.C., 1973, and the plain language of the proviso to Section 223(1) BNSS, the Magistrate should, first, examine the complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence, afford an opportunity of hearing to the accused. According to that view, cognizance in a complaint case occurs after the recording of statements under Section 223 but before the issuance of process under Section 227 of the BNSS, after giving an opportunity of hearing to the proposed accused.
32. The Allahabad High Court (Lucknow Bench) in Prateek Agarwal v. State of U.P.20 has also provided significant clarification 19 2025: KER : 6236 20 2024 SCC Online All 8212 32/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 regarding the safeguards under Section 223 BNSS. There, the Chief Judicial Magistrate had issued a summoning order to the accused even before recording the statements of the complainant and witnesses on oath. The High Court quashed the summoning order as being in violation of the mandatory procedure. That decision underscores that the Magistrate must adhere to a structured sequence of steps and that premature issuance of process, ignoring statutory stages, undermines the rights of the proposed accused. These decisions, read together, present a cohesive thread on two core points: (i) that Section 223 introduces a qualitatively new safeguard, requiring a real and effective opportunity of being heard before the Magistrate finally decides to proceed against the accused; and (ii) that cognisance in complaint cases is not a nebulous, unstructured notion but is anchored to the staged progression of Chapter XVI.
33. Under the former Section 200 Cr.P.C., 1973, the provision began with “A Magistrate having jurisdiction taking cognizance of an offence on complaint…”, whereas Section 223 of the BNSS begins with “A Magistrate having jurisdiction while taking cognizance of an offence on complaint…”. This deliberate shift in wording appears to be driven by the inclusion of the first proviso: it recognises that “cognizance” under 33/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 the BNSS is no longer a single instantaneous act but a process within which an intermediate point exists at which notice to the proposed accused is envisaged. Previously, once a Magistrate proceeded to record statements under Section 200 Cr.P.C., 1973, Courts often treated that act itself as indicative of taking cognizance. Under the BNSS, the phrase “while taking cognizance” suggests that the Magistrate is still in the process of arriving at the cognizance decision, and it is within this processual window that the proviso requires the accused to be heard.
34. For clarity, Section 223(1) BNSS must also be read in conjunction with Sections 225 and 226 of the BNSS (analogous to Section 202 & 203 Cr.P.C.), which provides:
“225.Postponement of issue of process:
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 212, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding 34/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made,-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 223.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Sanhita on an officer in charge of a police station except the power to arrest without warrant.” 35/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 “226. Dismissal of complaint.—If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.”
35. It is significant that, in criminal jurisprudence, the facet of fair procedure provides that a proposed accused is not expected to place incriminating material against himself or herself before the Court when afforded an opportunity of being heard at the threshold. Nor can such material, if furnished, be the primary basis for summoning; the accused’s role at that stage is to counter the complainant’s assertions with defensive material, if any. Significantly, Section 226 does not stipulate that dismissal of a complaint may be founded upon materials provided by the accused prior to cognizance; dismissal turns on the statements on oath of the complainant and witnesses and on the result of any inquiry or investigation contemplated by Section 225. This reinforces that the opportunity of hearing under the first proviso to Section 223(1) is not meant to convert the pre-cognizance stage into a mini-trial, but neither is it to be reduced to a ritual. 36/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025
36. In that light, the right to be heard at the threshold must be understood as a right to make submissions and, where appropriate, to place defensive material which can inform the Magistrate’s evaluation of whether there is sufficient ground to proceed but without permitting cross-examination of witnesses or full-blown adjudication. It is equally pertinent to distinguish between (i) an opportunity of hearing under the first proviso and (ii) a summoning order commencing trial-stage participation. The former is a procedural safeguard before the coercive machinery of criminal law is set in motion (by issuance of notice with substantive materials including complaint and annexures, sworn statements of the complainant and witnesses). The latter is a formal and authoritative command to face the process of trial.
37. When viewed against this statutory and interpretative background, the present case can be distinguished from Basanagouda R. Patil v. Shivananda S. Patil21 and Suby Antony v. Judicial First- Class Magistrate III22 on two counts. First, both those decisions proceed on the common assumption that the accused will receive full materials, the complaint, sworn statements, and Witness statements 21 (2024) 4 MLJ (crl) 22 2025: KER : 6236 37/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 before the learned Magistrate finally decides to proceed, and that the accused’s hearing will be meaningful, not perfunctory. In the case on hand, the petitioner’s specific grievance is that copies were not furnished at the proper stage and the objections were taken after the Magistrate had already set the matter in motion by issuing summons. Further, the issues framed and answered in the impugned order do not reflect a genuine, open-minded consideration of the jurisdictional and statutory objections raised. Thus, even if one were to adopt the timing approach suggested in Basanagouda R. Patil v. Shivananda S. Patil23 and Suby Antony v. Judicial First-Class Magistrate III24, the procedure followed by the learned Magistrate in this case would still fall foul of the requirement that the opportunity of being heard must be effective and prior to the final cognizance decision.
38. Secondly, Basanagouda R. Patil v. Shivananda S. Patil25 and Suby Antony v. Judicial First-Class Magistrate III26 were not cases where the Magistrate had, as here, effectively taken cognizance twice, first by recording sworn statements and issuing summons, and then by purporting to “reconsider” matters after objections by the 23 (2024) 4 MLJ (crl) 24 2025: KER : 6236 25 (2024) 4 MLJ (crl) 26 2025: KER : 6236 38/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 accused. Nor did those decisions involve a politically charged complaint by a serving senior police officer against a prominent opposition leader, where the constitutional sensitivity of political speech necessarily heightens the rigour with which statutory safeguards must be applied. The present case, therefore, stands on a distinct factual and constitutional footing.
39. In sum, unless one adopts the stricter sequence envisaged by this Court and the sequence envisaged in Basanagouda R. Patil v. Shivananda S. Patil27, Suby Antony v. Judicial First-Class Magistrate III28 and Prateek Agarwal v. State of U.P.29, which contemplates recording of statements followed by an effective pre- process hearing, the impugned order cannot survive. On any view of Section 223 BNSS, the course adopted by the learned Magistrate herein, recording sworn statements, issuing process (summons), and only thereafter entertaining objections without furnishing full materials at the correct stage, stands in clear violation of the statutory mandate.
40. Hence, this Court is of the considered view that, on the ground of non-compliance with Section 223 BNSS alone, the impugned 27 (2024) 4 MLJ (crl) 28 2025: KER : 6236 29 2024 SCC Online All 8212 39/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 order cannot stand the scrutiny of law and is liable to be set aside, leaving it open to the complainant, if so advised, to reinstitute proceedings strictly in accordance with the statutory sequence and safeguards.
41. Section 225 BNSS – Jurisdictional Vigilance & Abuse- Prevention:
The record reveals the accused resides outside the Magistrate’s jurisdiction, while the complaint invokes consequence-based jurisdiction through publication/access within Tiruchirappalli. Though Section 179 Cr.P.C., 1973/199 BNSS, 2023, jurisprudence permits consequence-based jurisdiction, Section 202 Cr.P.C., 1973 /225 BNSS, 2023 (by design) obliges a Magistrate to conduct a calibrated inquiry where the accused is outside jurisdiction and when parallel proceedings/FIRs are cited to screen forum shopping and avoid duplicate criminal processes on the same substratum. The impugned order does not disclose such a calibrated Section 225 screening. This omission fortifies the conclusion of non-application of mind at the correct stage. The Hon’ ble Apex Court in the case of Krishna Lal Chawla Vs State of U.P30, about the powers bestowed on the 30 (2021) 5 SCC 435 40/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 Magistrates has held as follows:
“18. The aforesaid powers bestowed on the Magistrate have grave repercussions on individual citizens’ life and liberty. Thus, these powers also confer great responsibility on the shoulders of the Magistrate – and must be exercised with great caution, and after suitable judicial application of mind. Observations in a similar vein were made by this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate : (SCC p. 760, para 28) “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary 41/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” This Court, thus, clearly emphasised that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made.
19. Similarly, the power conferred on the Magistrate under Section 202, CrPC to postpone the issue of process pursuant to a private complaint also provides an important avenue for filtering out of frivolous complaints that must be fully exercised. A four-
Judge Bench of this Court has eloquently expounded on this in Chandra Deo Singh v. Prokash Chandra Bose: (AIR p. 1433, para
7) “7. …No doubt, one of the objects behind the provisions of Section 202 CrPC is to enable the Magistrate to scrutinise carefully the allegations made 42/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant...” Thus, it is clear that, on receipt of a private complaint, the Magistrate must first, scrutinise it to examine if the allegations made in the private complaint, inter alia, smack of an instance of frivolous litigation; and second, examine and elicit the material that supports the case of the complainant.
20. It is said that every trial is a voyage of discovery in which the truth is the quest. In India, typically, the Judge is not actively involved in ‘fact-finding’ owing to the adversarial nature of our justice system. However, Section 165 of the Indian Evidence 43/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 Act, 1872 by providing the Judge with the power to order production of material and put forth questions of any form at any time, marks the influence of inquisitorial processes in our legal system. This wide-ranging power further demonstrates the central role played by the Magistrate in the quest for justice and truth in criminal proceedings, and must be judiciously employed to stem the flow of frivolous litigation.
21. All of this leads to one inescapable conclusion. That the Trial Judge has a duty under the Constitution and the CrPC, to identify and dispose of frivolous litigation at an early stage by exercising, substantially and to the fullest extent, the powers conferred on him. This Court has earlier emphasised on the high degree of responsibility shouldered by the trial Judges in All India Judges’ Association v. Union of India. Ranganath Misra CJ (as he was then) writing for himself and two others stated: (SCC p. 134 para 42) “42. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the proceedings in Court. On him lies the responsibility of building up of the case appropriately and on his understanding of the matter the cause of justice is first answered. The personality, knowledge, judicial 44/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 restraint, capacity to maintain dignity is the additional aspects which go into making the Court's functioning successful.”
22. Frivolous litigation should not become the order of the day in India. From misusing the Public Interest Litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India, (SCC P.642,para 191) “191…One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them 45/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his...” While the Court’s ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.
23. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility 46/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 in safeguarding the fundamental rights of the citizens of India as the highest court of this land.”
42. Needless to state that the respondent has used the justice delivery system for his personal vendetta.
43. Exceptions, Free Political Speech, and the Proper Forum:
True it is that exceptions to defamation are matters of defence ordinarily tested at trial (Subramanian Swamy v. Union of India31). Equally true, however, is that revisional Courts must be vigilant where criminal law is deployed to chill political speech. No doubt, the impugned words were uttered in the midst of a politically charged episode concerning policing of opposition cadres, unquestionably a public question. While this Court does not pronounce upon guilt or defences, the constitutional backdrop demands that threshold filters (Sections 223/225 BNSS) be strictly honoured before the criminal process is loosed upon political speech.
44. AIS Conduct Rules & Character of the Complaint:
Given this Court’s conclusion on procedural invalidity, it is 31 (2016) 7 SCC 221 47/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 unnecessary to return a determinative finding on AIS Conduct Rules. I make it unequivocally clear that, where a complaint intertwines personal reputation with official acts and designation, Magistrates would do well to test competence and bona fides with heightened care under Section 225 BNSS, to ensure the forum is not enlisted for “institutional image-management.”
45. Institutional Note: What police leadership ought to prioritise:
This Court would be derelict if it failed to record a normative reminder. Police officials, particularly those in leadership, serve the Republic best by strengthening the basic roots of the criminal investigation system, meticulous evidence collection, unbiased inquiry, swift and fair charge-sheeting not by waging legal wars with political actors to garner publicity or to vindicate personal prestige. The criminal process is not a reputation-laundering arena. When criticism fair or foul erupts around official action, the first institutional response must be better policing and better investigations, not strategic private prosecutions against political opponents.
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46. On the other flank, political leaders enjoy wide constitutional latitude to criticise official conduct. They also bear a responsibility to eschew personal vilification. The constitutional promise of free expression, especially political speech, must not be chilled by overbroad criminal processes initiated by bureaucrats. The State has enough public law remedies to address disorder; private complaints by officials against politicians, if entertained without strict procedural compliance, risk systemic chilling effects.
47. Our constitution guarantees to every citizen, and with special force to political actors, the freedom of speech and expression under Article 19(1)(a). That freedom is the oxygen of the representative Government: it protects vehement, caustic, and sometimes unpleasantly sharp attacks on public measures and official acts. It also safeguards rhetorical hyperbole that is intrinsic to political persuasion. Interestingly, the petitioner in the instant case, has always personified himself as a “man of rhetoric hyperboles”, only next to Thiru.Vai.Ko, in the political landscape of the State of Tamil Nadu. While Article 19(2) permits narrowly tailored restrictions, criminal law, especially the criminal law of defamation, must be invoked sparingly and with 49/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 procedural exactitude, lest it chill legitimate dissent and debate. Decisions such as R. Rajagopal v. State of TN32, S. Khushboo v. Kanniammal33, and Shreya Singhal v. Union of India34 recognise that public discourse on governance and public officials is entitled to a wide berth and that State power, including the criminal law, cannot be used to silence criticism merely because it is unpalatable or politically inconvenient. Equally, Subramanian Swamy v. Union of India35 preserves the statutory architecture of criminal defamation but reiterates that statutory Exceptions are matters of defence and that free speech in the public arena demands careful judicial calibration.
48. In the Indian constitutional scheme, politicians and bureaucrats occupy distinct but complementary spaces. Politicians are trustees of popular sovereignty, tasked with articulating, contesting, and critiquing public policy and administrative action. Their right, and often their duty, to criticise the bureaucracy is integral to democratic accountability. Bureaucrats, for their part, are constitutionally envisioned as neutral, non-partisan implementers of the law, disciplined by constitutional morality, service conduct rules, and the rule of law 32 1994 SCC (6) 632 33(2015) 5 SCC 1 34(2010) 5 SCC 600 35 (2016) 7 SCC 221 50/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 itself. Their legitimacy flows not from their personal standing but from the quality, fairness, and lawfulness of their investigations and decisions. Jurisprudence following Prakash Singh v. Union of India36 underlines that professional policing and insulated, accountable investigation are the bedrock of public confidence.
49. Against this backdrop, the present case is not merely about which words were spoken and where they were heard. It is also about how a Magistrate must deploy the BNSS’s new safeguards, notably Section 223 (requiring an opportunity of being heard before cognisance) and Section 225 (insisting on calibrated vigilance where jurisdiction and abuse-prevention concerns arise) before the criminal process is set in motion against a political speaker. When the complainant is a serving senior police officer and the accused a prominent opposition figure, the judiciary’s threshold scrutiny must be exacting to ensure that criminal law is not converted into an instrumentality for dampening political criticism or for project-style management of official reputation, to protect the officer's public image.
50. It is within this constitutional and institutional matrix that this Court examined the correctness of the impugned order in Crl.M.P. 36(2006) 8 SCC 1 51/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 No. 33131 of 2024 passed by the learned Judicial Magistrate No. IV, Tiruchirappalli, an order which, on the petitioner’s showing, inverted the statutory sequence, blurred the pre-cognisance safeguard, and risked taking cognisance twice, thereby necessitating revisional correction.
51. In the result, the Criminal Revision case is allowed.
52. The order of the learned Judicial Magistrate No. IV, Tiruchirappalli, in Crl.M.P. No. 33131 of 2024, purporting to take cognizance for defamation under the BNS and issue process, is set aside for non-compliance with Section 223 of BNSS, 2023, procedural inversion amounting to taking cognisance twice, and failure to undertake Section 225 BNSS screening commensurate with the facts placed.
53. All consequential proceedings, including summons issued to the petitioner, stand quashed.
54. Liberty is reserved to the complainant to reinstitute 52/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 proceedings, if so advised, strictly in accordance with law, subject to the following mandatory directions:
(a) Issue notice with full and prior supply to the proposed accused of the complaint, sworn materials, and annexures, and grant of a meaningful opportunity of being heard, before any step indicative of cognisance is undertaken, in faithful compliance with Section 223 BNSS, 2023.
(b) A reasoned order on jurisdiction and abuse-prevention in terms analogous to Section 225 BNSS, 2023, specifically addressing the residence of the accused outside jurisdiction, place(s) of publication and consequence, and the existence of parallel FIRs/proceedings on the same substratum.
(c) The learned Magistrate shall record awareness of the constitutional sensitivity of political speech and the institutional role of police leadership and proceed only if a clear prima facie case survives the above thresholds.
55. Nothing in this order shall be construed as an adjudication on the merits of the alleged imputation; all substantive defences, including those under Section 356 (defamation) Exceptions of the BNS and 53/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 constitutional arguments, are kept open.
Epilogue:
56. Democracy is sustained only when politicians can speak freely and bureaucrats can work fearlessly, each within constitutional discipline. Politicians must remain free to criticise police action, prosecutorial choices, and administrative conduct, and that freedom is not a personal indulgence but a structural guarantee of accountability. Their speech, even when spirited or stinging, is the safety valve of the constitutional order. Bureaucrats, conversely, strengthen democracy not by litigating reputational contests with political actors, but by perfecting investigation, eschewing partisanship, and letting the record of fair, prompt, and impartial policing speak for itself. Where criticism strays into the realm of defamatory falsehood, remedies exist; but the gateway to those remedies is narrow and procedurally guarded, precisely to prevent a chilling effect on public debate.
57. I have no hesitation to hold that, Courts do not referee political battles. They guard the rules of fair play by insisting that procedure, especially new legislative safeguards like Section 223 BNSS, 54/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 2023, be honoured in letter and spirit. In a constitutional democracy, police legitimacy flows not from silencing critics but from the quality of investigation. Where a public official feels aggrieved by political speech, the answer lies less in private prosecutions and more in public accountability through better policing. The criminal law of defamation, narrow, precise, and sparingly used, must never become a convenience to chill dissent.
58. The BNSS has consciously installed pre-cognizance guardrails, notably Section 223, to ensure that private complaints cannot be metastasized into tools of political deterrence. Those guardrails must be observed in letter and spirit. When a senior police officer seeks to invoke the criminal process against a political opponent for words spoken about official conduct on a public question, the Magistracy’s duty is heightened: supply materials first, hear the proposed accused meaningfully, test jurisdiction with care, and only then decide whether to proceed. Anything less risks weaponising the process and undermining public confidence in both institutions.
59. This Court, therefore, reiterates:
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https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 a.) Politicians’ right to criticise bureaucratic action is constitutionally protected; the line is crossed only where the law, strictly construed, is truly breached.
b.) Bureaucrats best vindicate institutional honour by exemplary investigation and neutrality, not by pre-cognisance shortcuts or symbolic prosecutions that can resemble attempts to curate public image.
c.) Magistrates must be vigilant custodians of BNSS safeguards, conscious that criminal defamation at the threshold, if loosely entertained, can have a disproportionate chilling effect on democratic contestation.
60. By restoring the primacy of procedure and the constitutional hierarchy of values, today’s decision aims not to embolden incivility, but to protect the democratic space for robust, even uncomfortable, scrutiny of official action, while reminding public officials that the surest answer to criticism is unimpeachable conduct and investigation. The Republic is better served when speech is answered with reason and critique with performance, not when criminal process becomes the first resort.
61. Accordingly the Criminal Revision Petition is allowed setting 56/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 aside the impugned order, with liberty and directions as above. No costs. Consequently, connected miscellaneous petitions are closed.
27.11.2025 NCC : Yes / No Index : Yes / No Internet : Yes Sml To
1.The Judicial Magistrate No. IV, Tiruchurappalli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
57/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm ) CRL RC(MD)No.772 of 2025 L.VICTORIA GOWRI, J., Sml CRL RC(MD)No.772 of 2025 27.11.2025 58/58 https://www.mhc.tn.gov.in/judis ( Uploaded on: 27/11/2025 07:56:09 pm )