Court holds cognizance order under Section 384 IPC void for non-compliance with BNSS notice provisions, finds complaint frivolous and vexatious, and prevents multiplicity of litigation by allowing challenge in ongoing quashing petition
In a significant judgment dated 15th October 2026, the Patna High Court, presided over by Justice Soni Shrivastava, quashed criminal proceedings initiated against Rakesh Kumar Tiwary, the petitioner, in a case involving allegations of extortion and related offences. The case arose out of FIR No. 281 of 2023 registered at Kadamkuan Police Station, Bihar, initially challenged by the petitioner under Section 482 of the Code of Criminal Procedure (CrPC).
During the pendency of the quashing petition, the police filed a final report (final form) on 30th April 2024, which was accepted by the trial court on 16th December 2024, leading to closure of the original FIR. However, a protest petition filed by the complainant was treated as a complaint, and cognizance was taken by the Magistrate under Section 384 of the Indian Penal Code (IPC) with summons issued to the petitioner. The petitioner challenged this order of cognizance through an interlocutory application within the same quashing petition, which raised questions about the maintainability of such a challenge.
The court dealt with a preliminary objection that the challenge to the cognizance order should have been filed separately since the original FIR had been closed. However, emphasizing the avoidance of multiplicity of litigation and delay in justice, the court decided to entertain the interlocutory application within the ongoing proceeding, clarifying that this was an exception and not to be treated as a precedent.
On the merits, the court found that the complaint against the petitioner was a verbatim repetition of the earlier FIR allegations, which had already been investigated and closed. It noted that the petitioner was not present at the alleged place of occurrence, being in Mumbai at the time, and that the allegations connecting him to instructions to the Delhi Police to ransack the complainant's office were far-fetched, vague, and inherently improbable. The court held that the essential ingredients of Section 384 IPC-intentionally putting a person in fear to dishonestly induce delivery of property-were not made out.
Importantly, the court found a serious procedural infirmity: the Magistrate took cognizance without issuing mandatory notice to the accused as required under the proviso to Section 223(1) of the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court held that this statutory provision creates a clear embargo on taking cognizance without affording the accused an opportunity to be heard, and violation of this mandate is not a mere irregularity but a fatal legal defect rendering the order unsustainable.
Relying on authoritative Supreme Court precedents including Pepsi Foods Ltd. v. Judicial Magistrate (1998), Krishna Lal Chawla v. State of U.P. (2021), and the recent Umar v. State of U.P. (2026), the court emphasized that summoning an accused is a serious matter requiring judicial mind and scrutiny, which was lacking here. The court also cited the landmark State of Haryana v. Bhajan Lal judgment (1992) to categorize this case as malicious and vexatious prosecution warranting quashing to prevent abuse of the Court's process.
Consequently, the Patna High Court quashed the entire criminal proceeding, including the cognizance order dated 5th May 2025, and allowed the petition and interlocutory application. The judgment reinforces the importance of procedural safeguards under BNSS, the necessity of judicial application of mind before summoning accused, and the principle of preventing frivolous litigation that wastes judicial time and violates individual liberty.
Bottom Line:
Criminal Procedure - Petition under Section 482 CrPC challenging FIR - During pendency, final form accepted and protest petition treated as complaint - Subsequent cognizance order can, in peculiar facts, be examined in same proceeding to avoid multiplicity - Cognizance quashed where complaint was verbatim repetition of earlier allegations, no ingredients of Section 384 IPC were made out, order showed non-application of mind, and mandatory notice/hearing under proviso to Section 223(1) BNSS was not given before taking cognizance.
Statutory provision(s):
Section 482 CrPC, Section 223(1) Proviso BNSS 2023, Section 384 IPC, Section 528 BNSS 2023, Sections 339, 354, 385, 451, 452, 469, 506, 120B IPC, Section 66D IT Act, Section 156(3) CrPC, Section 173(8) CrPC, Section 200 CrPC, Section 202 CrPC
Rakesh Kumar Tiwary v. State of Bihar, (Patna) : Law Finder Doc Id # 2998316
