Royce Savio PereiraversusThe State of Goa Through the Public Prosecutor and other

2026:BHC-GOA:1984
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                           IN THE HIGH COURT OF BOMBAY AT GOA
                           CRIMINAL WRIT PETITION NO.26 OF 2026

                                     ROYCE SAVIO PEREIRA
                                              VERSUS
                              THE STATE OF GOA AND ANOTHER
                                                  …
               Mr. Pavithran A. V. and Mr. Prasad Kholkar, Advocates for Petitioner.
               Ms. Swati Kamat Wagh, Additional Public Prosecutor for Respondent
               No.1/State.
               Mr. Vibhav Amonkar and Mr. Raj Chodankar, Advocates for
               Respondent Nos.2.
                                                 …
                                         CORAM : S. G. CHAPALGAONKAR, J.
                                         DATED : 05th OCTOBER, 2026.
               FINAL ORDER:-

               1.    The Petitioner impugns order dated 08.09.2025 passed by Judicial

               Magistrate First Class ‘F’ Court, Merces, Goa in Criminal Case

               No.IPC/117/2024/F, thereby allowing application dated 21.07.2025 filed

               by respondent no.2 granting liberty to file detailed reply to complaint

               before taking cognizance in terms of Section 223 of BNSS, 2023.


               2.    The     petitioner   filed    complaint   in   Criminal            Case

               No.IPC/117/2024/F before Judicial Magistrate First Class against

               respondent no.2 alleging commission of offence in terms of Section 356

               of BNSS, 2023. The learned JMFC recorded petitioner’s verification

               and issued notice to respondent no.2 in terms of Section 223 of BNSS,

               2023 affording opportunity of being heard. The respondent no.2 caused

               his appearance and filed application seeking leave to tender written

               reply to complaint. The learned Magistrate allowed said application

               vide impugned order dated 08.09.2025.
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3.       Mr. Pavithran, learned Advocate appearing for petitioner submits

that Section 223 of BNSS, 2023 prescribes for examination of

complainant and his witnesses on oath. However, Proviso is added that

‘no cognizance of an offence shall be taken by Magistrate without

giving accused an opportunity of being heard’. However, by impugned

order learned Magistrate misconstrued Proviso and treated same as

stage of mini trial at pre-cognizance stage. The learned Magistrate not

only permitted respondent to file his written objection to complaint, but

also observed that respondent can produce documents in support of his

contentions. As such, order impugned is ultra vires. In support of his

contentions he relies upon observations of Supreme Court in case of

Kushal Kumar Agarwal Vs. Directorate of Enforcement 1 and judgment

of Calcutta High Court in case of Kaberi Dey and Others Vs. Sourav

Battacharjee2.


4.       Per contra, Mr. Vibhav Amonkar, learned Advocate appearing for

respondent no.2 supports impugned order relying upon observations of

Supreme Court in case of Parvinder Singh Vs. Directorate of

Enforcement3 and judgment of Single Judge of High Court of

Karnataka in case of Basanagouda R. Patil Vs. Shivananda S. Patil4.


5.       Having considered submissions advanced by learned Advocates

appearing for respective parties and upon perusal of record tendered into
1    2025 SCC OnLine SC 1221.
2    2025 SCC OnLine Cal 5928.
3    2026 SCC OnLine SC 903.
4    2024 SCC OnLine Kar 96.
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service, question appears for consideration of this Court is as regards to

scope of opportunity of hearing to be given to accused at pre-

cognizance stage in light of provision contemplated under Section 223

of BNSS, 2023. It is apposite to refer wordings of Section 223 for

ready reference:

     “223. A Magistrate having jurisdiction while taking
     cognizance of an offence on complaint shall examine upon
     oath the complainant and the witnesses present, if any, and
     the substance of such examination shall be reduced to writing
     and shall be signed by the complainant and the witnesses,
     and also by the Magistrate:
            Provided that no cognizance of an offence 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 further 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:
            Provided further that in case of a complaint against a
     public servant, the Magistrate shall comply with the
     procedure provided in section 217.”


6.    Chapter XVI of BNSS, 2023 deals with Complaints to

Magistrates. The scheme under Chapter XVI prescribes that Magistrate

having jurisdiction shall first record his satisfaction after considering

statement of complainant or his witnesses or result of enquiry or

investigation as to sufficiency of grounds for proceeding with
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complaint.    Once Magistrate records his satisfaction regarding

sufficiency of grounds for proceeding, he is under obligation to grant

opportunity of being heard to accused before taking cognizance of

offence. In case of Kushal Kumar Agarwal (supra), Supreme Court

observed that ‘provision contained under Chapter XVI are applicable to

complaints under Section 44 of PMLA, particularly embargo on power

of Court to take cognizance only by providing opportunity of being

heard to accused’.


7.    In case of Kaberi Dey and Others (supra), Single Judge of

Calcutta High Court observed as under:

      “At the cost of repetition it can be said that at the stage of
      taking cognizance, the role of an individual accused is not
      germane for consideration. Therefore, the scope and ambit
      of hearing proposed accused at the pre cognizance stage is
      extremely limited. No defence of an accused can be taken
      into consideration at this stage. The words ‘giving the
      accused an opportunity of being heard’ is confined only to
      take an exception by the proposed accused to the taking of
      cognizance to the extent of jurisdictional error, taking of
      cognizance on a time barred complaint without condoning
      delay, taking of cognizance without obtaining sanction in a
      given case and/or taking of cognizance by a court not
      competent to take cognizance on account of existence of
      special court or on the issue of locus and/or inherent or
      technical defect in the complaint etc. A proposed accused
      can also demonstrate that the allegations in the complaint
      are so pre-posteriors obnoxious and outrageous that no
      semblance of offence is made out for taking cognizance.
      However in order to demonstrate that no offence has been
      disclosed, the proposed accused would not be entitled to
      produce any document or lay his defence beyond the
      complaint because the pre cognizance enquiry is offence-
      centric and not offender-centric. Naturally at this stage
      accused is not supposed to argue that no process should be
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       issued against him as the inquiry of this stage is offence-
       centric inquiry and not the offender-centric inquiry and
       since the scope of examination at the stage of cognizance is
       extremely narrow and therefore no detailed hearing can be
       afforded to a proposed accused.”

8.    Similarly, Single Judge of High Court of Karnataka in case of

Basanagouda R. Patil (supra) observed in paragraph no.11 as under:

       “11. The proviso indicates that an accused should have an
       opportunity of being heard. Opportunity of being heard
       would not mean an empty formality. Therefore, the notice
       that is sent to the accused in terms of proviso to sub-
       section (1) of Section 223 of the BNSS shall append to it
       the complaint; the sworn statement; statement of witnesses
       if any, for the accused to appear and submit his case
       before taking of cognizance. In the considered view of this
       Court, it is the clear purport of Section 223 of BNSS
       2023.”

9.    In light of aforesaid exposition of law, it is discernible that

introduction to Proviso under Section 223 BNSS, 2023 requiring grant

of opportunity of hearing to accused before taking cognizance is not

empty formality. Similarly, it cannot be stretched to level of mini trial.

The Magistrate is required to concentrate on contents of complaint and

material tendered into service suggesting commission of alleged offence

by accused. However, if at that stage accused is in position to dislodge

allegation in complaint by producing impeccable material or by putting

certain material that takes away jurisdiction of Magistrate to take

cognizance, Magistrate is bound to exercise powers under Section 226

of BNSS, 2023 and dismiss complaint. Needless to state here that

accused would not be entitled to rely upon any material, which requires
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recording of evidence or trial or in depth enquiry at pre-cognizance

stage.


10.      In       present   case,    impugned    order    merely       permits

respondent/accused to place on record his reply to contents of complaint

alongwith supporting documents. However, Magistrate would be bound

to refer only to that part of reply, which cannot be disputed by

complainant or which refers documents that are impeccable in nature

and worthy of acceptance without demur.               In light of aforesaid

observations, there is no merit in Writ Petition.


11.      In result, Writ Petition stands dismissed.


                                           (S. G. CHAPALGAONKAR)
                                                    JUDGE
Devendra/October-2026