Gauhati High Court Clarifies BNSS Procedure, Quashes Magistrate’s Notices Issued Before Examining Complainant
Accused must be heard before cognizance under Section 223 BNSS, but only after complainant and witnesses are examined on oath
The Gauhati High Court has set aside orders of a Judicial Magistrate First Class (JMFC), Morigaon, holding that notices issued to accused persons before examining the complainant on oath violate Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The Court clarified the correct procedure for taking cognizance in complaint cases under the new criminal procedure regime and remanded the matters back for fresh consideration.
The Court held that the correct sequence under Section 223 read with Section 226 BNSS is first examination of the complainant and witnesses on oath, then a Magistrate’s preliminary assessment of the complaint. Subsequent to which issuance of notice to the accused for an opportunity of hearing before cognizance and, thereafter, decision on taking cognizance or dismissal of complaint.
Justice Anjan Moni Kalita observed, “…this Court is of the considered opinion that in terms of Sub-section (1) of Section 223 of BNSS, 2023, before taking cognizance of an offence, the Magistrate/Court must issue a notice to the accused in the Complaint. It is also the finding of the Court that such notice shall not be issued to the accused before examination of the Complainant and the witnesses, if any on oath, this is for the reason that 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”.
“…if the Magistrate is of the opinion that there is substance in the Complaint and the same is ascertained after examination of the Complainant and the witnesses, if any, on oath, before taking cognizance of the matter by issuance of process, he is required to mandatorily give a notice to the accused person so as to provide him/her an opportunity to be heard. Therefore, a careful reading of Section 223 along with Section 226 of BNSS, 2023, it is discernable that prior to giving notice to the accused person, the Magistrate is required to examine the Complainant and the witnesses, if any”.
Senior Advocate B. Dutta appeared for the petitioners and Advocate S. K. Poddar appeared for the respondent.
In the matter, the bench was hearing two criminal petitions filed under Section 528 BNSS, seeking quashing of proceedings in two complaints pending before the JMFC, Morigaon.
The complaints in the matter was out of a long-standing land dispute between related parties in Morigaon district, where both sides had also initiated civil proceedings. The petitioners argued that the Magistrate had issued notices in a “mechanical manner” without first examining the complainants and their witnesses, as mandated under law.
Now, the issue before the High Court was the interpretation of Section 223(1) BNSS, which introduces a significant departure from Section 200 CrPC by adding a proviso that no cognizance shall be taken without giving the accused an opportunity of being heard.
The Court undertook a detailed comparison between the old CrPC framework and the new BNSS provision, noting that while BNSS introduces a pre-cognizance hearing right to the accused, this does not dispense with the Magistrate’s duty to first examine the complainant and witnesses on oath.
The bench said that issuing notice to the accused before such examination, defeats the scheme of BNSS and renders the process legally flawed. It also observed that if a complaint is liable to be dismissed under Section 226 BNSS after examining the complainant, prior notice to the accused would be unnecessary.
Accordingly, both the criminal petitions were disposed of.
Cause Title: Bhupendra Choudhury & Anr. v. Arun Choudhury [Neutral Citation: 2025:GAU-AS:17370]
Appearances:
Petitioners: B. Dutta, Senior Advocate, S. Deka, Advocate.
Respondent: S. K. Poddar, Advocate.