The Patna High Court has quashed criminal proceedings against Rakesh Kumar Tiwary. It held that a Magistrate cannot take cognizance of an offence on a complaint without first hearing the accused. Cognizance is the court’s formal step of taking notice of an offence. Justice Soni Shrivastava said the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 places a clear bar on such an order.
Background
Tiwary had asked the Court under Section 482 of the CrPC to quash Kadamkuan P.S. Case No. 281 of 2023, registered on a complaint by Sheela Tiwary. While his plea was pending, police filed a final form on 30.04.2024, saying the case was untrue. The trial court accepted it on 16.12.2024 and treated her protest petition as a complaint. After recording statements of the complainant and two witnesses, the Magistrate took cognizance under Section 384 of the IPC on 05.05.2025 and issued summons. Tiwary challenged that order through I.A. No. 1 of 2025.
Sheela Tiwary argued the order should have been challenged separately. The Court agreed that is the usual course. But the protest petition repeated the earlier complaint word for word, the plea had been pending for long, and proceedings were already stayed. Asking him to file afresh would only multiply litigation, it said, while clarifying this would not be a precedent.
A report dated 10.09.2026 from the Magistrate’s court confirmed that no notice was sent to Tiwary before cognizance was taken. The Court rejected the argument that the proviso did not apply because the protest petition was filed before the BNSS came into force. Relying on Kushal Kumar Agarwal v. Enforcement Directorate, it said:
“This provision has been brought on the statute book in consonance with the principles of natural justice. Taking away of such a valuable right flowing from the statute is a direct attack on the statutory mandate and the legislative intent. It would be totally unjust to term it as a mere irregularity, rather it becomes a case of serious infirmity in the order making it legally unsustainable.”
The Court also found the allegation far-fetched. Tiwary was said to have instructed Delhi Police to search the office of the complainant’s husband, yet he was in Mumbai at the time. The complaint did not allege Section 384 IPC at all, and both witnesses were interested: the complainant’s husband and his staff member.
The Court chose not to send the matter back for a hearing and examined the material itself. It said:
“The complaint itself is suggestive of the backdrop in which it came to be filed, making it indisputably clear that the prosecution is a vexatious one, distinctly attended with malafide.”
Finding the case within categories (1), (5) and (7) of State of Haryana v. Bhajan Lal, the Court quashed all proceedings against Tiwary, including the 05.05.2025 order.
It allowed the application along with I.A. No. 1 of 2025.
