The Tripura High Court has set aside an order of the Chief Judicial Magistrate (CJM), West Tripura, Agartala, after finding that the accused were not given an opportunity of being heard before the Magistrate took cognizance of a complaint.
Justice Biswajit Palit, in a judgment delivered on September 7, 2026, held that the requirement under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is mandatory for complaints filed after the new criminal procedure law came into force.
The petition was filed by Dipankar Majumder and Maitri Majumder under Section 528 of the BNSS. The challenge was directed against the CJM's order dated July 12, 2024, in CR 209 of 2024.
According to the petitioners, Kotak Mahindra Bank Ltd. had filed a complaint against them and others under Sections 61(2), 314, 316, 318, 320, 321, 323 and 324 of the Bharatiya Nyaya Sanhita (BNS). The petitioners argued that the CJM took cognizance on the same day without first giving them an opportunity to be heard.
The State opposed the petition, arguing that there was no illegality because the CJM had not recorded the statements of the complainant or witnesses and had instead transferred the case to another Magistrate.
The High Court examined the difference between the earlier Section 200 of the Code of Criminal Procedure and the newly introduced Section 223 of the BNSS.
The Court noted that the BNSS came into force on July 1, 2024, while the complaint in the present matter was filed on July 12, 2024. Section 223 specifically introduced a requirement that was absent from the corresponding provision of the old law.
The Court observed:
“the Magistrate before taking cognizance of offence shall give an opportunity to the accused concerned of being heard.”
Justice Palit also relied upon the Supreme Court's decision in Kushal Kumar Agarwal v. Directorate of Enforcement, where non-compliance with the same requirement under Section 223 was treated as sufficient ground to set aside the impugned order.
The High Court held that, for complaints filed after July 1, 2024, a Magistrate must hear the accused before taking cognizance. It found that the earlier Supreme Court decisions relied upon by the State did not apply to the factual situation before it.
The petition was therefore allowed. The July 12, 2024 order of the CJM was set aside, and the matter was remanded to the CJM, West Tripura, Agartala, for a fresh hearing in accordance with Section 223 of the BNSS. The parties were directed to appear before the CJM on September 22, 2026.
Case Title: Dipankar Majumder & Anr. v. State of Tripura & Anr.
Case Number: Crl.P. No. 33 of 2026
Judge: Justice Biswajit Palit
