The Gauhati High Court has set aside criminal proceedings initiated by a Morigaon magistrate, holding that notices issued to the accused were legally premature under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Justice Anjan Moni Kalita, delivering a common judgment, ruled that a magistrate must first examine the complainant and witnesses on oath before issuing notice to the accused in complaint cases.
Background of the Case
The petitions were filed by Bhupendra Choudhury and Biswajit Choudhury, challenging two criminal cases pending before the Judicial Magistrate First Class (JMFC), Morigaon.
The cases stemmed from a long-standing land dispute in Morigaon district, Assam. The petitioners claimed peaceful possession of a government village grazing reserve (VGR) land for decades, while the respondents alleged trespass, theft of trees, and unlawful occupation.
Parallel civil proceedings were already pending before a civil court when the respondents filed criminal complaints, leading the JMFC to issue notices to the accused on 21 February 2025, without first examining the complainants on oath.
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Aggrieved by what they called a “mechanical exercise of power,” the petitioners approached the High Court seeking quashing of the proceedings.
Senior counsel for the petitioners argued that the magistrate failed to follow Section 223 of the BNSS, 2023, which mandates examination of the complainant and witnesses before issuing notice to the accused.
“The law now requires judicial application of mind before dragging a person into criminal proceedings,” the petitioners submitted, stressing that the notices were issued without any such examination.
The respondents, however, contended that the allegations disclosed criminal offences beyond a mere civil dispute. They argued that BNSS permits issuance of notice at the pre-cognizance stage and that the magistrate had not acted illegally.
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Court’s Observations
Justice Kalita closely examined the procedural shift introduced by BNSS, comparing it with the earlier Code of Criminal Procedure (CrPC).
The Court noted that Section 223 BNSS adds a crucial proviso, requiring that no cognizance be taken without giving the accused an opportunity of being heard. However, this opportunity comes after the magistrate examines the complainant and witnesses-not before.
“The natural and logical sequence,” the bench observed, “is first to examine the complainant and witnesses on oath. Issuing notice to the accused prior to this stage defeats the very purpose of Section 226 of BNSS, which empowers dismissal of complaints at the threshold.”
The judge further explained that issuing notice before examining the complainant could result in unnecessary harassment if the complaint is ultimately dismissed.
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Decision of the High Court
Holding that the JMFC acted in violation of statutory procedure, the High Court quashed the notices issued in both criminal cases.
“The orders dated 21.02.2025 are unsustainable in law,” Justice Kalita ruled, adding that they were passed without complying with the mandatory requirements of Section 223 BNSS.
The matters were remanded back to the JMFC, Morigaon, with directions to first examine the complainants and their witnesses on oath, and then proceed strictly in accordance with law.
The criminal petitions were partly allowed and disposed of, with liberty granted to the petitioners to raise issues relating to the pending civil dispute before the magistrate.
Case Title: Bhupendra Choudhury & Anr. vs Arun Choudhury & Anr.
Case No.: Crl. Pet. Nos. 1126 & 1127 of 2025
Case Type: Criminal Petition (Quashing)
Decision Date: 15 December 2025
