Judgment & Order (Cav)

1. Heard Mr. B. Dutta, the learned Senior Counsel assisted by Mr. S. Deka, learned Counsel appearing for the Petitioners and Mr. S. K. Poddar, learned Counsel for the Respondent.

2. The instant Petition(Crl. Pet. 1126/ 2025) under Section 528 of BNSS, 2023 has been filed by the Petitioners praying for quashing of the proceeding of C.R. Case No. 144/2025 pending before the JMFC, Morigaon under Sections 303/324(4)/329(4)/3(5) of BNSS, 2023. It would be relevant to mention herein that C.R. Case No. 144/2025 was registered on the basis of a complaint lodged by one Arun Choudhury (Respondent herein) against the Petitioners before the Court of JMFC, Morigaon.

3. A similar Petition being Crl. Pet. No. 1127/2025 has been filed under Section 528 of BNSS, 2023 praying for quashing of the proceeding of C.R. Case No. 143/2025 pending before the JMFC, Morigaon under Section 303/324(4)/329(4)/3(5) of BNS. In this case also the C.R. Case No. 143/2025 was registered on the basis of a complaint lodged by one Shri Adhir Das (Respondent herein) against the Petitioners before the Court of Judicial Magistrate First Class, Morigaon.

4. In both the aforesaid Crl. Petitions i.e. Crl. Pet. 1126/2025 and Crl. Pet. 1127/2025, the issues raised are same and both have been filed for quashing the respective aforesaid C.R. Cases pending before the JMFC, Morigaon on the basis of complaints filed by the respective Respondents against the Petitioners. Due to similar facts and allegations as well as issues involved in both the Crl. Petitions, both are tagged together and listed together for hearing. Therefore, both the Petitions were heard together and are beingdisposed of by the instant common Judgement & Order.

5. The facts of the cases involved in both the Petitions being same are summarized hereinbelow:

                   (I) In the year, 1949, the father of the Petitioner No. 1, namely, Bholanath Choudhury along with his two brothers, purchased a plot of land measuring twenty four (24) bigas approximately from one Bapuram Deka @ Koch and started residing in their respective plots. In front of the aforesaid land, there was an open field which was declared by the Government as VGR land and since 1949, the father of the Petitioner No.1 is in possession of that land without interruption. However, in the year, 1964, the father of the Petitioner No. 1 allowed the Petitioner No. 1 to take possession of the VGR land measuring 2 kathas 10 lechas situated at village Jargaon under MayongRevenue Circle for fishery, cowsheds etc. Since then, the said land is under peaceful possession of the Petitioner No. 1.

                   (II) In the year, 1967, the father of one Arun Choudhury,Respondent in Crl. Pet. 1126/2025, namely, Sri Nilakanta Choudhury who was the nephew of the father of the Petitioner No. 1, took shelter in the house of the father of Petitioner No. 1 and subsequently, he had given 1 bigha of VGR land under his possession to the said Nilakanta Choudhury i.e. the father of Arun Choudhury by the father of the Petitioner No.1. Later on, the Government settled the said land measuring 1 bigha in favour of the Respondent.

                   (iii) On 08.12.2024, when the Petitioner No. 1 went to his aforesaid land for development, the Respondent along with some other associates stopped him. As the Respondent along with some associates were trying to occupy the aforesaid land of the Petitioner No 1, the Petitioner No. 1 filed a petition under section 126 of BNSS, 2023 before the learned District Magistrate, Morigaon and accordingly, the District Magistrate, Morigaon directed the O.C. Jagiroad P.S. to submit a report. However, the same is yet to be submitted.

                   (iv) Faced with the aforesaid situation, Petitioner No. 1 filed a title suit, registered and numbered as Title Suit No. 16 of 2025 before the learned Civil Judge (Jr. Division), Morigaon against the Respondent and his son and the same is still pending before the learned Civil Judge (Jr. Division), Morigaon.Then on 22.06.2025, while the Petitioners were returning from their grocery shop, the Respondent along with his associates physically assaulted them and extorted an amount of Rs.2,00,000/- from them. Though the Petitioners went to file an FIR in Jagiroad P.S., due to the clout and influence of the Respondent and his associates, the police did not accept the FIR. Without any option, the Petitioners on 27.02.2025, filed a complaint being C.R. Case No. 175/2025 against the Respondent and his associates before the JMFC, Morigaon under Sections 296/308(1)/109/61(2)/329/115(2)/351(2)/3(5) of BNSS, wherein, the learned JMFC, vide order dated 28.02.2025 issued notice upon the Respondent and his associates. Subsequently, on 21.08.2025, the statement of the Petitioner under Section 233 of BNSS was also recorded.

                   (v) The Petitioners received notices in connection with C.R. Case No. 143/2025 filed by one of the associates of the Respondent (Arun Choudhury), namely, Adhir Das asking them to appear on 23.09.2025 before the JMFC, Morigaon.

                   (vi) The Petitioners received another notice issued in connection with C.R. Case No. 144/2025 filed by the present Respondent (Arun Choudhury). Having gone through the Complaints being C.R. 143/2025 as well as 144/2025, the Petitioners realised that in both the cases, the allegations levelled against them are almost same.

                   (vii) The Petitioners on receipt of the aforesaid notices and after perusal of the order dated 21.02.2025 in both the C.R.cases, realised that the notices were issued by the learned JMFC, Morigaon in a very mechanical manner and without any application of mind. Therefore, being aggrieved by the aforesaid notices issued, vide dated 21.02.2025 in both the aforementioned C.R. Cases, have filed the instant two Criminal Petitions for quashing of the respective notices dated 21.02.2025 as well as the proceedings in connection with the aforesaid two C.R.Cases.

6. Mr. B. Dutta,the learned Senior Counsel appearing for the Petitioners in both Criminal Petitions,submits that the learned JMFC, Morigaon has passed the order dated 21.02.2025 for issuanceof notices to the Petitioners without applying his judicial mind and issued the process against the Petitioners without arriving at any subjective satisfaction. He submits that the order of Magistrate issuing notice to the accused must reflect that he has applied his mind to the facts of the case and law applicable thereto. He further submits that the learned JFMCM has passed the impugned orders before examination of the complainants and witnesses, if any. Thereby, he submits that the mandates of Section 223 of the BNSS, 2023 have not been complied with. He submits that Section 223 of BNSS, 2023 provides that on presentation of a complaint, it would be the duty of the Magistrate/ concerned Court to examine the Complainant on oath, which would be his sworn statement and examine the witnesses present, if any, and the substance of examination should be reduced in writing. He submits that the question of taking cognizance would not arise at that juncture. He submits that the Magistrate, has to in terms of the Proviso to Section 223(1) of BNSS, 2023 issue a notice to the accused who should be given an opportunity of being heard. Therefore, a notice is required to be issued post examination of the complainant and witnesses, if any and after hearing the accused, take cognizance and regulates its procedure thereafter. He submits that in both the C.R. Cases involved in the instant Criminal Petitions, no such exercise as mandated under Section 223 of BNSS, 2023was carried out while passing the order dated 21.02.2025. Therefore, he submits that the order dated 21.02.2025 whereby notices were issued to the Petitioners by the learned JMFC, Morigaon are flawed and hence, merits to be set aside and quashed.

7. In support of his arguments and submissions, the learned SeniorCounsel has referred to and relied on the following cases:-

                   (i) Basanagouda R. Patil-vs-Shivananda S. Patil , reported in 2024 SCC OnLine Kar 96;

                   (ii)Subi Antony-vs-Judicial First Class Magistrate-III and Others,reported in 2025 SCC OnLine Ker 532;

                   (iii) Rakesh Kumar Chaturvedi-vs-State of U.P. and Another , reported in 2025 SCC OnLine All 4884;

                   (iv) Sashidhar Jagdishan-vs-State of Maharasthra and Others , reported in 2025 SCC OnLine Bom 2928;

                   (v) Raj Kumari Das-vs-State of Assam and Another (Crl. Pet. 670/2025) decided by the Gauhati High Court on 30.10.2025.

8. In addition to the aforesaid submissions, the learned Senior counsel submits that the issues involved on the basis of which aforesaid C.R. Cases have been filed are purely of civil nature and during the pendency of the aforesaid Title Suit filed by the Petitioners, the learned JMFC, Morigaon ought not to have issued the notices in the aforementioned C.R. Cases.

9. Mr. S. K. Poddar, the learned Counsel appearing for the respective Respondents in the instant two criminal petitions, submits that the issues involved are not only of civil nature which are apparent from the complaints filed by the Respondents. He submits that the Petitioners have forcefully trespassed into the land belonging to the respective Respondents and they have stolen valuable trees and vegetables from their respective lands whereby causing huge monetary loss to the Respondents.

10. Mr.Poddar, the learned Counsel further submits that while passing the order dated 21.02.2025,the learned JMFC, Morigaon has not committed any error of law as it is only upon taking cognizance of an offence, the Magistrate can examine the complainant on oath and also the witnesses, if any. Therefore, he submits that the service of notice on the accused prior to examination of the complainant and the witnesses, if any, is as per the provision laid down in Section 223 of BNSS, 2023. In this regard, the learned Counsel has referred and relied on the following cases:-

                   (i) Pradyut Kumar Das-vs-Ajit Borah, reported in 2006 2 GLT 574;

                   (ii) Kaberi Dey and Others -vs-Sourav Bhattacharjee, reported in 2025 Supreme (Online) (Cal) 3440.

11. This Court has gone through the materials brought before this Court, the case laws that have been cited by the respective counsel appearing for the parties and also heard the submissions made by them.

12. By way of bringing in of BNSS, 2023, there has been a significantchange 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. InSection 223 of BNSS (erstwhile 200 of Cr.P.C.), a proviso has been added to Sub-section 1 of Section 223 of BNSS which was not there earlier under Section 200 of Cr.P.C.

13. At this juncture, it may be relevant to reproduce section 200 of Cr.P.C. as well as Sub-section 1 of Section 223 of BNSS hereinbelow:-

                   “200. Examination of complainant-A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

                   Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

                   (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

                   (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

                   Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them”.

                   “223. Examination of complainant.—

                   (1) A Magistrate having jurisdiction while the taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainantandthe witnesses, and also by the Magistrate:

                   Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrateneed not examine the complainant and the witnesses-

                   (a) if a public servant acting or purporting to act in the discharge of his officialduties or a Court has made the complaint; or

                   (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

                   Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them”.

14. From a careful reading of Section 200 of Cr.P.C., it is clear that while taking cognizance of an offence on a Complaint, the Magistrate needs to examine the Complainant on oath and the witnesses present, if any and thereafter, substance of such examination shall have to be reduced to writing, which shall be signed by the Complainant and the witnesses and also by the Magistrate. Therefore, it is apparent that the involvement of the accused person was not required at the time of taking cognizance by the Magistrate under Section 200 Cr.P.C. However, under Section 223 of BNSS, 2023 a notable change has been brought intoSub-section (1) of Section 223 of BNSS, 2023. 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. Therefore, it is discernable from a reading of section 223 BNSS, 2023 that a Magistrate cannot take cognizance of an offence alleged in a Complaint without first providing the accused an opportunity to be heard. 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. What is discernable from the aforesaid proviso is that the possible object of such provision is to afford the accused an opportunity to point outpotential false implications, amongst others and thereby, to avoid unwarranted harassments.

15. Since the term “cognizance” has been used in both the aforesaid Sections,it may be worthwhile to address the issue as to what actually means by the term ‘Cognizance’. The issue is important because on the basis of taking cognizance only, the timing of issuance of notice to the accused could be decided in a complaint case.Though there are many cases and the Hon’ble Apex Court has observed about this term, in this connection, the case of R.R. Chari-vs-State of U.P. reported in AIR 1951 SC 207 can be referred to. In that case, the Hon’ble Apex Court held that taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of the offence. So, a proper assessment of the complaint as well as other materials, oral or documentary needs to be done by an application of a judicial mind. Therefore, as per Section 200 of Cr.P.C., the Magistrate mandatorily needs to examine upon oath the Complainant and the witnesses present, if any and on the basis of such examination, which is required to be reduced to writing on application of judicial mind on such examination of the Complainant and the witnesses present, if any. The Magistrate has to decide and come to a conclusion as to whether process is to be issued on taking cognizance of the offence. Therefore, as per Section 200 of Cr.P.C.,the cognizance can be taken only after examination of the Complainant and the witnesses, if any; and the Magistrate does not require to examine the accused person at that point of time i.e. while taking cognizance.

16. However, under Sub-section (1) of Section 223, BNSS, in view of the proviso that has been added, before taking cognizance of an offence, the Magistrate has to mandatorily give the accused person an opportunity of being heard, meaning thereby on completion of examination of the Complainant and the witnesses, if any on oath,the Magistrate is required to issue a notice to the accused person for his examination. On completion of such exercise only, the cognizance of the offence could be taken by the Magistrate by issuing process.So what is discernable from the aforesaid two provisions of Section 200 Cr.P.C. and Section 223 (1) BNSS, 2023 is the involvement of the accused person before taking cognizance by the learned Magistrate under Section 223 (1) BNSS, 2023 which was not present under Section 200 Cr.P.C., 1973.

17. In view of the aforesaid discussions, this Court is of the considered view that 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. However, this is only when the Magistrate does not want to exercise his powers under Section 226 of the BNSS, 2023.

18. At this point, it may be relevant to consider the case laws that have been relied upon by the learned counsel for the respective parties.

19. In the case of Basanagouda (Supra), it was held by the learned Single Judge of the High Court of Karnataka that the proviso indicates that the accused should have an opportunity of being heard and before that, the question of taking cognizance would not arise. A notice shall be issued to the accused and after hearing the accused, cognizance has to be taken. In the case of Subi Antony (Supra), the learned Single Judge of the High Court of Kerala held that the Magistrate should first examine the Complainant and witnesses on oath and thereafter, if the Magistrate proceeds to take cognizance of the offence(s) opportunity of hearing should be afforded to the accused. In the case of Rakesh Kumar Chaturvedi (Supra), the learned Single of the High Court of Allahabad has held that the Magistrate after examination of the complainant and witnesses, if any, if is of the opinion that the complaint cannot be dismissed, required to issue notice to the accused person for his examination.Only after his examination, the cognizance would be taken by the Magistrate by issuing formal process in the case. In the case of Sashidhar Jagdishan (Supra), the learned Single Judge of the High Court of Bombay has also come to a similar finding holding that the stage of taking cognizance would occur only after examining the Complainant and witnesses and not immediately on filing of the Complaint. In the case of Rajkumari Das (Supra), a Co-ordinate Bench of the Gauhati High Court has held that there may not be a bar for issuing notice to the accused before examination of Complainant or witnesses but the natural and logical sequence would be examine the Complainant and witnesses and thereafter, issue notice to the accused.

20. As far as the cases cited by the learned Counsel appearing for the Respondents, in the case of Prodyut Kr. Das (Supra) while examining the scope of section 200 Cr.P.C., it was held that mere presentation of a complaint does not mean the Magistrate has taken cognizance of the same unless the Magistrate has applied his mind for the purpose of proceeding under Section 200 Cr.P.C. It was held that when the Magistrate initially applies his mind on the contents of the Complaint, he become conscious and aware of the allegations made therein and decide to examine the validity of the said Complaint by examining the Complainant and then, he can said to have taken cognizance. The learned Single Judge further went on to hold that it is only on taking of the cognizance of an offence that it is open to the Magistrate to examine the Complainant on oath under Section 200Cr.P.C. and also the Complainant’s witnesses, if any. In the case of Kaberi Dey (Supra), the learned Single Judge of the High Court of Calcutta has held that the scope and ambit of hearing of the proposed accused is extremely limited as no defence of an accused can be taken into consideration at that stage. Therefore, the learned Single Judge held that once a complaint is filed, after registering the same, the Court has to issue a notice to the proposed accused person. It was further held that the purpose of such notice is to provide a right of hearing at a pre cognizance stage.

21. This Court has considered the aforementioned cases.

22. The ratios laid down in the cases of Basanagouda R. Patil (Supra), Subi Antony (Supra), Rakesh Kumar Chatruvedi (Supra), Sashidhar Jagdishan (Supra) and Raj Kumari Das (Supra) are agreeable to this Court.

23. As far as the case of Pradyut Kumar Das (Supra), that case basically deals with Section 200 of Cr.P.C. in absence of the proviso which has been added to the Subsection (1) of Section 223 of BNSS, 2023, therefore, the ratio laid down in the aforementioned case, in the considered opinion of this Court, may not be relevant for the adjudication of the instant case in hand.In the case of Kaberi Dey (Supra), it is seen that the same is silent on the aspect of examination of the Complainant and the witnesses, if any under Section 223 (1) BNSS. Though, it provides that on receipt of a Complaint, after registering the same, the Court has to issue a notice to the proposed accused persons, it does not provide as to whether the notice has to be issued prior to examination of the Complainant and witnesses, if any or post examination of the Complainant and the witnesses, if any. Therefore, this Court respectfully refrains from taking into consideration the ratio laid down in the case.

24. As for the time of issue of notice to the accused person is concerned in a Complaint case, it may be relevant to refer Section 226 of BNSS, which is extracted hereinbelow:

                   “226.Dismissal of Complaint-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225, the Magistrate is of the opinion that there is sufficient grounds for proceeding, he shall dismiss the complaint, and in every such case, he shall briefly record his reasons for so doing”.

25. What is discernable in clear terms from the aforesaid Section 226 is that the Magistrate has the power under Section 226 of BNSS to dismiss the Complaint. This power he can exercise only after examination of the Complainant and the present witnesses, if any, on oath. The Magistrate is mandated to record his reasons for dismissal of the Complaint. It is also seen that there is no mention of examination of the accused before the Magistrate comes to a conclusion of dismissing the Complaint. In view of the aforesaid provisions, it is clear that while dismissing a Complaint, the Magistrateneed not requiredto examine the accused on oath. However, 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.

26. It may be relevant herein to refer 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.

27. Having discussed the aforesaid provisions of Cr.P.C., BNSS as well as the ratios laid down in the aforesaid cases, 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.

28. 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.

29. Taking into account the facts and circumstances of the instant cases, this Court is of the considered opinion that that matters should be remandedto 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. 144/2025 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.

30. 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, Morigaon.

31. 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.

32. In view of the aforesaid directions, both the Criminal Petitions are disposed of.