Guwahati: In a significant ruling that clarifies the procedural shift from the old criminal code to the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Gauhati High Court has held that a Magistrate cannot issue a notice to an accused person in a private complaint without first examining the complainant and their witnesses on oath.

The Court observed that while the BNSS introduces a mandatory "right of hearing" for the accused before cognizance is taken, this stage only arises after the Magistrate has prima facie found merit in the complaint through the initial deposition of the complainant.

The ruling came in the matter of Bhupendra Choudhury & Anr. v. Arun Choudhury and a connected petition. The petitioners had challenged orders passed by the Judicial Magistrate First Class (JMFC), Morigaon, in two separate criminal cases.

The dispute was primarily over a land matter, which the petitioners claimed was civil in nature. However, the private respondents had filed criminal complaints alleging trespass, theft of trees, and assault. The JMFC, upon receiving the complaints, had immediately issued notices to the accused (the petitioners) to appear and be heard.

The petitioners argued that these notices were issued "mechanically" and in violation of the legal procedure, as the Magistrate had not yet examined the complainants or their witnesses on oath to verify the substance of the allegations.

Justice Anjan Moni Kalita, while presiding over the case, conducted a deep dive into the transition from Section 200 of the Code of Criminal Procedure (Cr.P.C.) to Section 223 of the BNSS.

Under the old Cr.P.C. (Section 200), the procedure was straightforward:

A complaint is filed.
The Magistrate examines the complainant and witnesses on oath.
The Magistrate either dismisses the complaint or issues a process (summons/warrant) to the accused. Importantly, the accused had no right to be heard before the Magistrate decided to take cognizance.

Under the new BNSS (Section 223), a crucial proviso has been added:

"Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."

This new rule was designed to prevent frivolous litigation and save innocent people from the harassment of groundless criminal proceedings. However, it created a procedural question: When exactly should this notice be sent?

The Court’s Logic: Why Examination Must Come First

The Gauhati High Court addressed the confusion regarding the sequence of events. The Court noted that if a Magistrate issues a notice to the accused the moment a complaint is filed, it might result in a "futile exercise."

The Court relied on Section 226 of the BNSS, which gives the Magistrate the power to dismiss a complaint if, after examining the complainant and witnesses, they find there are no sufficient grounds for proceeding.

Justice Kalita reasoned that:

Power of Dismissal: The Magistrate has the authority to throw out a baseless complaint immediately after hearing the complainant’s side.
Efficiency: If the Magistrate is going to dismiss the complaint anyway under Section 226, there is no need to bother the accused with a notice.
The Sequence: Therefore, the natural and logical sequence is:
First, the Complainant and witnesses are examined on oath.
Second, if the Magistrate finds there is "substance" in the case, a notice is issued to the accused.
Third, after hearing the accused, the Magistrate decides whether to formally "take cognizance" and issue a summons.

The Court explicitly stated:

"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... would be a futile exercise, uncalled for."

The Ruling

The High Court found that the JMFC Morigaon had jumped the gun by issuing notices to the petitioners before recording the initial statements of the complainants.

Setting aside the lower court's orders, the High Court remanded the matter back to

the JMFC. The Magistrate has now been directed to:

First, examine the complainants and their witnesses on oath.
Then, proceed in accordance with Section 223 (issuing notice to the accused if the case is not dismissed) and Section 226 of the BNSS.

The Court also noted that the petitioners are free to raise the issue that the dispute is purely civil in nature before the Magistrate during their hearing.

This judgment serves as a vital guideline for Trial Courts across the region. By ensuring that a complainant’s story is tested under oath before the accused is dragged into court, the Gauhati High Court has reinforced the protective spirit of the BNSS while maintaining procedural efficiency.

For the common citizen, this means that while the law now provides a "right to be heard" even before a case officially begins, the court must still do its homework by verifying the complaint first.

Case Title: Sri Bhupendra Choudhury & Anr. v. Sri Arun Choudhury

Court: Gauhati High Court

Citation: 2025:GAU-AS:17370

Judge: Hon'ble Mr. Justice Anjan Moni Kalita