Ms. Anita Rani Mehra & Anr. vs Ms Neena Kapoor

$~110
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 28.10.2026
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CNR No. DLHC010174322026

CRL.M.C. 3169/2026
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MS. ANITA RANI MEHRA & ANR. .....Petitioners
Through: Mr. Pavan Narang, Sr. Adv., Mr.
Siddharth Das, Mr. Tushar Sharma,
Mr. Siddharth Gautam, Mr. Kamal
Narayan and Mr. Pulkit Dua, Advs.
versus
MS NEENA KAPOOR .....Respondent
Through: Ms. Smiti Verma, Mr. Pranay Chitale,
Ms. Sonakshi Chaturvedi and Mr.
Aditya Dutta, Advs.

CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA

SACHIN DATTA, J. ( Oral )
1. The present petition has been filed by the petitioners under Section
528 of the the Bharatiya Nagarik Suraksha Sanhita, (‘BNSS’) 2023 assailing
an order dated 07.04.2026 passed by the Sessions Court-05, South East
District, Saket Court in Criminal Revision 702/2025 and the order dated
25.08.2025 passed by the Judicial Magistrate First Class- 04 (‘JMFC’),
South East District, Saket Court in Complaint Case No. 4100/2025.
2. The petitioners are the proposed accused in Complaint Case No.

4100/2025, filed by the respondent under section 223 BNSS, pending before
the JMF-04, South East District, Saket Court, alleging offences under
Sections 227 and 229 of the Bharatiya Nyaya Sanhita, 2023.
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Signature Not Verified
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:04.11.2026
10:43:28

3. By the order dated 25.08.2025, the learned JMFC, on receipt of the
complaint, directed issuance of notice to the petitioners (as proposed
accused), prior to recording of the statement of the complainant and her
witnesses. The revision petition preferred by the petitioners against the said
order was dismissed by the learned ASJ vide the impugned order dated
07.04.2026. The learned ASJ held that, to give effect to Section 223(1)
BNSS along with its proviso, the Magistrate must issue notice to the
proposed accused before recording the statements of the complainant and
the witnesses, and that the order of the learned JMFC suffered from no
illegality. The learned ASJ further observed that, since the proceedings
before the trial court could not be kept pending indefinitely, the petitioners
be permitted to attend the examination of the complainant and her witnesses,
without permission to interject or cross-examine.
4. Learned senior counsel for the petitioner submits that issuance of
notice to a proposed accused before the complainant and witnesses are
examined on oath is contrary to Section 223(1) BNSS. This position has
now been affirmed by a judgment dated 29.09.2026 rendered by a Division
Bench in Dr. Rita Bakshi v. Seema Bajaj & Anr . [Neutral Citation:
2026:DHC:8460-DB]..
5. Reference is made to the dicta laid down by the Special Division
Bench as follows:
“ 81. In view of our above discussion, we answer the questions
referred to us by the learned Single Judge as under:
Question 1: What is the stage at which a Magistrate can be said
to have taken "cognizance" of an offence, in the context of a
private complaint, under the provisions of BNSS, and whether
the expression "while taking cognizance" as employed in Section
223(1) of the BNSS implies that the examination of the
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Signature Not Verified
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:04.11.2026
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complainant and witnesses on oath is a step prior to taking of
cognizance of offence ?
Answer: The Magistrate can take cognizance of an offence only
after examining the complainant and the witnesses present on oath,
unless it is exempted by the statute, and giving an opportunity to
the accused to be heard. Therefore, under Section 223(1) of the
BNSS, the examination of the complainant and the witnesses
present on oath, unless exempted, and hearing the accused, are
steps prior to taking the cognizance of the offence by the
Magistrate. Question 2: At what stage is the Magistrate required
to issue notice to the accused in compliance with the first proviso
to Section 223(1) of the BNSS - whether (a) upon perusal of the
complaint but prior to recording of the statement of the
complainant and witnesses, if any, or (b) after recording such
statements but before a formal decision on taking cognizance?
Answer: The Magistrate is required to issue a notice to the
accused, in compliance with the first proviso to Section 223(1) of
the BNSS, after examining the complainant and the witnesses
present on oath, unless exempted, and forming a prima facie
opinion that the complaint does not deserve to be dismissed under
Section 226 of the BNSS but cognizance may deserve to be taken of
the offence. However, formal decision of taking cognizance can be
taken by the Magistrate only after granting an opportunity of being
heard to the accused.

6. Given the aforesaid dicta, the order dated 25.08.2025 to the extent it
directed notice to the proposed accused before the complainant and the
witnesses were examined on oath, cannot be sustained. The order dated
07.04.2026, passed by the learned ASJ which upheld the order dated
25.08.2025 is also equally unsustainable. The said orders are accordingly,
set aside.
7. It further transpires that pre-summoning evidence was led by the
respondent during the pendency of the matter before the Division Bench.
8. In the circumstances, learned JMFC is directed to proceed further,
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Signature Not Verified
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:04.11.2026
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from the present stage, after complying with the dicta laid down in para 81
of the judgment dated 29.09.2026.
9. If on evidence recorded the JMFC forms the prima facie opinion that
the complaint does not deserves to be dismissed under Section 226 BNSS,
notice under the first proviso 223(1) BNSS shall be issued to the petitioners
and they shall be heard before the question of cognizance is decided.
10. The petition is disposed of in the above terms.
11. Learned trial court is requested to expedite the matter to the extent
feasible.

SACHIN DATTA, J
OCTOBER 28, 2026/ cl
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Signature Not Verified
Digitally Signed
By:ABHISHEK THAKUR
Signing Date:04.11.2026
10:43:28