Seeman vs Varun Kumar

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,

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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-

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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

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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

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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

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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

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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

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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)

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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

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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

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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

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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

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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:

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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

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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.

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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

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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

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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

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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

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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

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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

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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.”

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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.”

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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

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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

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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

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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

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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)

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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

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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

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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

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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.”

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“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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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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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

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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.

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L.VICTORIA GOWRI, J.,

Sml

CRL RC(MD)No.772 of 2025

27.11.2025

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