A short but significant order quietly settles two important procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023.
Introduction
A Magistrate issues a notice under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The accused resides outside the territorial jurisdiction of the court. The Magistrate did not conduct any preliminary inquiry.
Is this procedure valid?
The Supreme Court of India has now answered this question with a firm: No.
In a concise but consequential order, the Court has reinforced procedural discipline under the BNSS, settling two critical aspects that have long troubled criminal practice.
The Procedural Framework Under BNSS
Before understanding the judgment, it is essential to grasp the statutory scheme.
Section 223 BNSS empowers a Magistrate to issue process (summons or warrant) against an accused in a complaint case. However, this power is not absolute. It is conditioned by the Magistrate’s jurisdiction.
Section 225 BNSS provides an additional safeguard. When the accused resides outside the territorial jurisdiction of the Magistrate, the Magistrate must first conduct an inquiry. Only after being satisfied that sufficient grounds exist to proceed can the Magistrate issue process under Section 223.
The sequence, therefore, is:
- Inquiry under Section 225 (if accused resides outside jurisdiction)
- Satisfaction of sufficient grounds
- Issue of notice/process under Section 223
What the Supreme Court Held
First Principle: Section 225 Must Precede Section 223
The Court underscored that where the accused resides outside the Magistrate’s territorial jurisdiction, compliance with Section 225 BNSS is the primary requirement. The inquiry under Section 225 must precede any issuance of notice under Section 223.
To reverse this sequence—issuing notice first and conducting inquiry later—would render Section 225 otiose (having no practical function). The Apex Court rightly guarded against this.
Key takeaway: The sequence is not optional. It is mandatory.
Second Principle: Jurisdiction Must Be Determined Before Process
The Court reiterated a foundational but often overlooked principle: Section 223 applies only to a “Magistrate having jurisdiction.”
The issue of jurisdiction must, therefore, be considered by the Magistrate prior to issuance of process. It cannot be relegated to an issue for determination only after the issuance of notice, at the time of hearing the accused.
Key takeaway: Jurisdictional safeguards cannot be reduced to mere formalities.
Why This Judgment Matters
For Accused Persons
If you reside outside the Magistrate’s territorial jurisdiction and notice has been issued under Section 223 without a prior inquiry under Section 225, you now have clear Supreme Court authority to challenge the proceedings.
The Court has held that the Magistrate must first determine:
- Whether it has jurisdiction; and
- Whether sufficient grounds exist to proceed
Only then can notice be issued.
For Magistrates
The judgment is a reminder of procedural discipline. Skipping the Section 225 inquiry is not a mere irregularity. It is a violation of the statutory scheme that can vitiate the entire proceeding.
For Defence Lawyers
This judgment provides a powerful ground for quashing proceedings where:
- The accused resides outside the Magistrate’s jurisdiction; and
- Notice under Section 223 was issued without prior inquiry under Section 225
For Prosecutors
Ensure that the Magistrate conducts the necessary inquiry before seeking issuance of notice. A procedural defect at this stage could derail an otherwise meritorious case.
Practical Takeaways
| Situation | What the Law Now Requires |
|---|---|
| Accused resides outside Magistrate’s jurisdiction | Section 225 inquiry MUST precede Section 223 notice |
| Magistrate issues notice without prior inquiry | Proceedings liable to be challenged |
| Jurisdiction questioned | Magistrate must decide BEFORE issuing process, not at hearing stage |
| Sequence reversed (notice first, inquiry later) | Section 225 rendered otiose – not permitted |
The Bigger Picture
This short order carries significant weight. It is not merely about procedure. It is about the fundamental principle that jurisdiction matters. An accused cannot be called upon to appear before a court that has not first determined its own jurisdiction.
The Supreme Court has ensured that jurisdictional safeguards are not reduced to formalities. They are substantive protections that must be honored at the earliest stage.
Conclusion
In an otherwise concise order, the Supreme Court has reinforced discipline in procedural sequencing. Section 225 BNSS must precede Section 223 BNSS. Jurisdiction must be considered before process is issued.
These are not technicalities. They are the foundation of fair procedure.
As the Court has now made clear, reversing the sequence renders Section 225 meaningless. And that, the Apex Court rightly guards against.
Adv. Shoeb Hakim
Criminal Procedure & BNSS Advisor
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Disclaimer: This article is for informational purposes only and does not constitute legal advice. Readers should consult a qualified lawyer for advice on specific cases.
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