Magistrate Must Examine Complainant, Witnesses On Oath Before Issuing Notice To Accused U/S 223 BNSS: Gauhati High Court
The Gauhati High Court has held that under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a Magistrate cannot issue notice to the accused before examining the complainant and witnesses on oath, and that doing so violates the statutory mandate.
Justice Anjan Moni Kalita, presiding over the ruling, held, “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.”
The above ruling was made in two Criminal Petitions which arose from two complaint cases filed before the Judicial Magistrate First Class (JMFC), Morigaon by two individuals, viz., Adhir Das and Arun Choudhury respectively against the two petitioners.
According to the case placed by the petitioners, disputes arose between the parties over possession of land at village Jhargaon, Morigaon. When petitioner no.1 allegedly attempted to develop the land, he was stopped by Arun Choudhury and others, following which he approached the District Magistrate under Section 126 BNSS and also instituted a Title Suit before the Civil Judge (Junior Division), Morigaon, which remains pending.
The petitioners further stated that they were allegedly assaulted and money was extorted from them, leading them to file a separate complaint case against Arun Choudhury and his associates.
Subsequently, they received notices filed by Adhir Das and Arun Choudhury. Claiming that both complaints contained almost identical allegations and arose from the same land dispute, the petitioners approached the Gauhati High Court seeking quashing of the proceedings and the notices issued by the JMFC.
Senior counsel for the petitioners argued that the JMFC had issued notices in a mechanical manner without applying judicial mind and before complying with Section 223 BNSS, which mandates examination of the complainant and witnesses on oath. It was also submitted that the dispute was essentially civil in nature, especially in view of the pending title suit.
Opposing the petitions, counsel for the respondents alleged trespass and theft causing monetary loss and contended that issuance of notice prior to examination of the complainant was permissible under Section 223 BNSS.
After examining Section 223 BNSS alongside Section 200 CrPC, the Court noted that a “notable change” had been introduced by the proviso to Section 223(1), which requires that no cognizance be taken without giving the accused an opportunity of being heard.
The Court observed, “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.”
The Court further held, “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.”
Further, the High Court noted that the JMFC had issued notices in both complaint cases “without the examination of the Complainants and their witnesses, if any, on oath,” which was held to be in violation of Section 223(1) BNSS.
Accordingly, the Court set aside and quashed the JMFC's orders and remanded the matters to the JMFC, Morigaon with a direction “for taking appropriate action as per law … 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.”
Accordingly, both criminal petitions were partly allowed and disposed of accordingly.
Case Title: Bhupendra Choudhury & Anr. v Arun Choudhury
Case No.: Crl. Pet. No. 1126/2025