S. 223, 226 BNSS | Magistrate Must Give Notice To Accused After Examining Complainant & Before Taking Cognizance: Gauhati High Court
The Gauhati High Court has held that under the provisions of BNSS if the Magistrate feels that there is some substance in a criminal complaint then after examining the complainant and the witnesses on oath and before taking cognizance of the matter, the magistrate must give notice to the accused providing him an opportunity of hearing.In doing so the court set aside notices issued by the...
The Gauhati High Court has held that under the provisions of BNSS if the Magistrate feels that there is some substance in a criminal complaint then after examining the complainant and the witnesses on oath and before taking cognizance of the matter, the magistrate must give notice to the accused providing him an opportunity of hearing.
In doing so the court set aside notices issued by the Judicial Magistrate First Class, Morigaon holding that the Magistrate had acted contrary to the statutory scheme by issuing notices to accused without examining the complainants and witnesses on oath as per Section 223(1) BNSS, and remanded the matters for fresh consideration.
The petitions arose as a result of two complaint cases pending before the Magistrate Court in which notices were issued to the accused immediately upon the filing of the complaints. The accused challenged these notices before the high court, contending that the Magistrate's failure to follow the statutory sequence mandated by Section 223(1) of the BNSS resulted in non-compliance with the law and must be set aside and quashed.
Justice Anjan Moni Kalita in his order observed:
“Issuance of notice to the accused prior to examination of the Complainant and the witnesses, if any, is not what is mandated under Section 233(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”, the Court held.
Further, comparing Section 233 of the BNSS to its erstwhile counterpart, the Court noted that while Section 200 of the Cr.P.C. did not contemplate hearing the accused at the pre-cognisance stage, BNSS introduces a proviso foregrounding such an opportunity.
“So what is discernable from the aforesaid two provisions of Sec 200 Cr.P.C. and Section 223(1) BNSS,2023 is the involvement of the accused person before taking cognisance by the learned Magistrate under Section 233 (1) BNSS,2023, which was not present under Section 200 Cr.P.C., 1973”, the court noted.
Thereafter while referring to both Section 223(examination of complainant) and Section 226 (which pertains to dismissal of complaint by magistrate after considering statements on oath he finds there arent sufficient grounds to proceed), the high court said:
"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 Magistrate need not required to 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".
It further clarified the objective of the provision, observing that its addition safeguards the accused from false implications and thus serves as an instrument to protect against unwarranted harassment.
“What is discernible from the aforesaid proviso is that the possible object of such provision is to afford the accused an opportunity to point out potential false implications, amongst others and thereby, to avoid unwanted harassments”, the court said.
The court reasoned that Section 226 sanctions the Magistrate to dismiss the Complaint after examining the complainant. Therefore, upon the application of the power granted under Section 226, a premature notice serves no purpose at all and would be “ a futile exercise, uncalled for”, the Court noted.
Consequently, holding the Magistrate's orders contrary to the statutory mandate, the Court set aside the notices issued in both complaint cases and remanded the matter to the JMFC to proceed afresh in accordance with Sections 223(1) and 226 BNSS and other relevant provisions.
Case title: Bhupendra Choudhury v/s Arun Choudhury
CRIMINAL PETITION.1126/2025 and connected petition