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IN THE HIGH COURT AT CALCUTTA
Ajoy Kumar Mukherjee
Kaberi Dey – Appellant
Versus
Sourav Bhattacharjee – Respondent
| Table of Content |
|---|
| 1. factual basis of the complaint (Para 1) |
| 2. arguments on non-compliance with section 223 of bnss (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 3. judicial analysis of section 223 and taking of cognizance (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 4. remand for complying with legal procedures (Para 30) |
| 5. conclusion and directive to courts (Para 31 , 32) |
JUDGMENT :
Ajoy Kumar Mukherjee, J.
1. Shorn of unnecessary details the case of the petitioners herein is that on 12th September, 2024 a complaint was filed by the opposite party herein before the court of learned Chief Judicial Magistrate (in short CJM), At Jalpaiguri against the petitioners herein, alleging commission of offence punishable under sections 115(1) /115(2) /118(1) /117(2) /126(1) /329(3)/351(2)/351(3) of the Bharatiya Nyaya Sanhita, 2023 ( in short BNS, 2023). On September 13th 2024 said CJM was pleased to take cognizance straightway on perusal of complaint and transferred the case to the court of learned judicial Magistrate 1st Court, for disposal in contravention of section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short BNSS) without a
The court emphasized that under Section 223(1) of BNSS, a Magistrate must examine the complainant and provide the accused an opportunity to be heard before taking cognizance of an offence.
The court clarified that under Section 223(1) of BNSS, a Magistrate must examine the complainant and witnesses before taking cognizance and issuing notice to the accused.
The requirement for the accused to be heard before taking cognizance of an offence is now mandatory under Section 223 of the B.N.S.S., marking a critical procedural safeguard.
The denial of an opportunity for a hearing before taking cognizance vitiates the cognizance order and subsequent proceedings under the Prevention of Money-Laundering Act, constituting a violation of ....
Cognizance of offences – Notice is to be issued to accused only after examination of Complainant and present witnesses.
A Magistrate must examine the complainants and witnesses before issuing notices to the accused under Section 223(1) of BNSS, 2023, ensuring compliance with procedural mandates.
Recording complainant's sworn statement under Section 223 BNSS does not amount to taking cognizance; it is pre-cognizance material collection requiring accused hearing.
A magistrate must adhere to procedural safeguards, including providing the accused a hearing before taking cognizance, as mandated by Section 223 of BNSS; failure to comply renders the cognizance ord....
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