Magistrate's Orders in Two Criminal Cases Set Aside for Violating Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023
In a significant decision, the Gauhati High Court has quashed notices issued in two criminal proceedings, underscoring the importance of procedural safeguards as mandated under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The court found that the Judicial Magistrate First Class (JMFC), Morigaon, issued notices to the accused without first examining the complainants and their witnesses on oath, as required by Section 223 of BNSS.
The petitions, filed by Bhupendra Choudhury and others, sought the quashing of proceedings in C.R. Case No. 143/2025 and C.R. Case No. 144/2025. Both cases, initiated by complaints from Arun Choudhury and Adhir Das, were pending before the JMFC, Morigaon.
The court, presided over by Justice Anjan Moni Kalita, emphasized that the Magistrate must exercise judicial discretion and follow the sequential procedure mandated by the BNSS. The court highlighted that notices to the accused should only be issued post-examination of the complainants and witnesses on oath, a step crucial for ensuring fairness and preventing unwarranted harassment.
The High Court's judgment clarified the procedural nuances introduced by the BNSS, 2023, especially the critical change from the previous Code of Criminal Procedure, 1973. Unlike the former provisions, the BNSS explicitly requires the accused to be given an opportunity to be heard before the Magistrate takes cognizance of an offence.
The court's decision to set aside the JMFC's orders and remand the cases for compliance with BNSS procedures underscores the judiciary's role in upholding procedural justice. The court directed the JMFC to examine the complainants and witnesses on oath before proceeding further, ensuring adherence to Section 223 and Section 226 of BNSS, 2023.
This judgment not only addresses procedural lapses in the specific cases at hand but also sets a precedent for the application of the BNSS, reinforcing the importance of following statutory mandates to uphold the rights of individuals involved in criminal proceedings.
Bottom Line:
Section 223 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mandates that the Magistrate must issue a notice to the accused before taking cognizance of an offence. Such notice should only be issued after examination of the complainant and witnesses, if any, on oath, to comply with procedural safeguards.
Statutory provision(s): Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 223, 226, 528
Sri Bhupendra Choudhury v. Sri Arun Choudhury, (Gauhati) : Law Finder Doc Id # 2822531
