S. 223, 226 BNSS | Magistrate Must Examine Complainant On Oath, Then Give Accused Hearing Notice Before Cognizance: Gauhati High Court
Deekshitha Sharmile
The Gauhati High Court Single Bench of Justice Anjan Moni Kalita set aside and quashed notices issued by the Judicial Magistrate First Class, Morigaon in two private-complaint cases after finding they were issued to the accused before the complainants and witnesses were examined on oath and remitted the matters for fresh consideration. The complaints stemmed from a land possession dispute and included allegations of trespass and removal of trees and vegetables. The Court held that under the Bharatiya Nagarik Suraksha Sanhita, if a Magistrate finds substance in a criminal complaint, the complainant and witnesses must first be examined on oath and, before cognizance, the accused must receive notice and an opportunity of hearing.
The dispute arose from allegations connected to possession and use of village grazing reserve (VGR) land in Morigaon district. The petitioners claimed uninterrupted possession of portions of the land since 1949, with subsequent use for fishery and cowsheds. They alleged that the respondents attempted to occupy the land and obstructed their development activities.
The petitioners stated that they had filed a title suit before the Civil Judge (Junior Division), Morigaon, and also lodged a complaint against the respondents for alleged assault and extortion. They contended that despite filing an FIR, the police did not act, leading them to approach the Magistrate.
The respondents, on the other hand, alleged that the petitioners trespassed into their land and caused monetary loss by removing trees and vegetables. Complaints were filed before the Judicial Magistrate First Class, Morigaon, resulting in notices being issued against the petitioners.
The petitioners challenged these notices, arguing that they were issued mechanically without examination of complainants or witnesses as required under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The respondents maintained that the notices were valid and consistent with statutory provisions.
Justice Anjan Moni Kalita recorded: “By way of bringing in of BNSS, 2023, there has been a significant change in the procedural aspect, involved under the erstwhile Section 200 of the Code of Criminal Procedure, 1973 (Cr.P.C.) viz-a-viz Section 223 of BNSS, 2023.”
The Court stated: “By adding the proviso to the aforesaid Sub-section (1), it has been made clear that no cognizance of an offence shall be taken by the Magistrate without giving the accused the opportunity of being heard.” It was observed: “Meaning thereby, before the Magistrate takes cognizance of the matter i.e. prior to the Magistrate applying his judicial mind in the whole issue, the proviso to Sub-section (1) of Section 223 BNSS, 2023 calls for issuance of a notice to the accused.”
The Court noted: “Issuance of notice to the accused prior to examination of the Complainant and the witnesses, if any, is not what is mandated under Section 223(1) of BNSS, 2023, rather what is mandated is notice to be issued to the Accused only after examination of the Complainant and the present witnesses, if any.”
It was further recorded: “In terms of Section 226 of BNSS, the Magistrate/Court has the power to dismiss the Complaint on examination of the Complainant and the witnesses, if any on oath. Therefore, in the event of exercising his power under Section 226 of BNSS, any prior notice to the accused before examination of the Complainant and the witnesses, if any on oath, would be a futile exercise, uncalled for.”
The Court referred to precedent: “In the case of Kushal Kumar Agarwal-vs-Directorate of Enforcement, reported in 2025 Supreme (SC) 919, wherein, the Hon’ble Apex Court has clearly held that the proviso to Sub-section (1) of Section 223 of BNSS puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
The Court directed: “In view of the aforesaid conclusions arrived at by this Court, on the facts of the case in hand, it is seen that the Magistrate has issued the notices, vide his order dated 21.02.2025 in both the C.R. cases i.e. C.R. Case No. 143/2025 and C.R. Case No. 144/2025 without the examination of the Complainants and their witnesses, if any, on oath, which is in violation of the mandates of Sub-section (1) of Section 223 of BNSS. Therefore, the order dated 21.02.2025 in both the C.R. Cases are liable to be set aside and quashed. Accordingly, the order dated 21.02.2025 passed in C.R. Case No. 143/2025 and C.R. Case No. 144/2025 are set aside and quashed.”
It further directed: “Taking into account the facts and circumstances of the instant cases, this Court is of the considered opinion that that matters should be remanded to the learned Court of JMFC, Morigaon for taking appropriate action as per law in C.R. Case No. 143/2025 and C.R. Case No. 144 respectively after examination of the Complainants and the witnesses, if any, on oath and thereafter, proceed with the case in terms of Sub-section (1) of section 223, Section 226 of BNSS and relevant provisions of BNSS, 2023.
“This Court hastens to add before parting that the Petitioners shall be at liberty to raise the issues regarding civil disputes between the Parties before the learned JMFC. Accordingly, both the Criminal Petitions i.e. Crl. Pet. 1126/2025 and Crl. Pet. 1127/2025 are partly allowed to the effect as directed hereinabove.”
Advocates Representing the Parties
For the Petitioners: Mr. B. Dutta, Senior Advocate, assisted by Mr. S. Deka, Advocate
For the Respondents: Mr. S. K. Poddar, Advocate
Case Title: Bhupendra Choudhury & Anr. v. Arun Choudhury & Anr.
Neutral Citation: 2025:GAU-AS:17370
Case Number: Criminal Petition 1126/2025 and Criminal Petition 1127/2025
Bench: Justice Anjan Moni Kalita
