Dr Rita Bakshi vs Seema Bajaj & Anr.

Court
Delhi High Court

$~109
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28.10.2026
# CNR No. DLHC010207062025
+ CRL.M.C. 2551/2025
DR RITA BAKSHI .....Petitioner
Through: Mr. Rakesh Malhotra, Mr. Kushal
Malhotra, Mr. Prince Yadav, Ms.
Gayatri Bhatia and Ms. Anita, Advs.
versus
SEEMA BAJAJ & ANR. .....Respondents
Through: Mr. Raajan Chawla and Ms. Pooja
Joshi, Advs.


CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA

SACHIN DATTA, J. (ORAL)

1. The present petition has been filed under section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS) seeking quashing of the order dated
21.01.2025 passed by the Learned JMFC – 03, South District, Saket Courts
in CT Cases 2771/2024.
2. The aforesaid order dated 21.01.2025 reads as under:

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3. The present petition involves the issue as to the stage at which notice
is to be issued to the proposed accused under the first proviso of Section
223(1) BNSS.
4. Vide judgment dated 18.03.2026 passed in the present proceedings,
this Court referred two questions of law to a lager bench of this Court. The
said order inter-alia reads as under:


5. A Division Bench of this Court answered the aforesaid questions vide
judgment dated 29.09.2026 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
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By:UMANG
Signing Date:03.11.2026
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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
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.

82. With the above answers to the questions referred, and subject
to the orders of Hon’ble the Chief Justice, list these petitions
th
before the Roster Bench on 28 October 2026. ”

6. Learned counsel for the petitioner states that during the pendency of
the reference petition, pre-summoning evidence was led by the
complainant/respondent no.1 and thereafter fresh notice was issued to the
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Digitally Signed
By:UMANG
Signing Date:03.11.2026
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proposed accused.
7. Learned counsel for the petitioner submits that even the said
procedure did not meet with the requirements as set out by the Division
Bench in the aforesaid judgment while answering question no.2 therein
inasmuch as the learned Magistrate, before issuing notice, did not form the
“ 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”.
8. In the circumstances, learned counsel for the petitioner submits that
the petitioner intends to avail appropriate remedies against the aforesaid
exercise conducted by the Magistrate. Accordingly, the petitioner seeks to
withdraw the present petition with liberty to avail appropriate legal
remedies.
9. The petition is accordingly, dismissed as withdrawn, with liberty, as
prayed for.
10. In the event the petitioner avails such remedies, she shall be at liberty
to seek condonation of delay for the period during which the present petition
remained pending before this Court. Any such application shall be
considered by the concerned court in accordance with law.
11. The petition is disposed of in the above terms.


OCTOBER 28, 2026/ cl SACHIN DATTA, J
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Digitally Signed
By:UMANG
Signing Date:03.11.2026
19:37:24