A magistrate must provide an opportunity to the accused before taking cognizance of an offence, as mandated by Section 223 of BNS-2023, highlighting the limitation on the magistrate's authority in recognizing protest petitions.

JUDGMENT :

Rajesh Mazumdar, J.

1.Heard Mr. T. Deuri, Learned Counsel appearing for the petitioner and also heard Mr. S. Banik, Learned Counsel appearing for the respondent number 2. The learned APP represents the State.

2. The bone of contention in this criminal petition is an order dated 3-8-2024, whereby the court of the learned S.D.J.M. Sadiya Sapakhowa had decided to take cognizance against the petitioner herein on the perusal of the statements of a complainant petition supported by an affidavit and upon hearing the learned engaged counsel for the complainant. The learned magistrate had also taken into account the statements of two witnesses under 225 B.N.S.S.

3. The facts of the case in brief is that the respondent number 2 herein had lodged an FIR before the officer in charge, Zero Point, Dhala Police Station, Tinsukia, Assam, alleging that some unknown persons had entered into a piece of land owned and possessed by the respondent number 2 herein and had illegally put up a banner of a voluntary organisation. The petitioners have been alleged to be the president and secretary of the voluntary organisation, which had allegedly entered into the land of the respondent no.2 herein.

4. Upon investigation by the concerned police station authorities, it was revealed that the land was in a tribal belt and that a civil case was already pending between the parties. Therefore, in view of the findings, the investigating officer had submitted a final report, being final report number 05/2019, dated 31-03-2019, before the learned court, terming it a civil dispute.

5. The respondent number 2 had thereafter appeared in the court of the Sub Divisional Judicial Magistrate at Sadiya, Sapakhoa, on 1-7-2024 and had filed a protest petition wherein he had prayed before the court to reject the final report submitted by the police and for further directions to the police to reinvestigate the case and thereafter submit a charge sheet against the petitioners herein. Records available also reveal that the respondent number 2 had thereafter caused affidavits to be filed by himself and two other witnesses and based on the protest petition and the statements made on affidavit, the learned SDJM had taken cognizance of the matter under section 115 (2)/329(3)/324(4)/126 (2) of the BNS -2023 against the petitioner's herein.

6. Mr. Deori, the learned counsel for the petitioner, has submitted that the learned SDJM failed to apply his mind when he decided to treat the protest petition as a private complaint without taking into consideration the final report submitted by the officer in charge of the Saikhowaghat police station. The learned counsel has submitted that, in fact, a bare perusal of the order dated 30-8-2024 reflects that the learned SDJM has recorded that he had perused the complaint petition, “supported by an affidavit”. The learned counsel for the petitioner has drawn the attention of this court to the protest petition, showing that there was no affidavit supporting it.

7. The learned counsel for the petitioner has submitted that even otherwise, the nature of the allegations levelled in the FIR, the findings of the investigating authority, which resulted in the final report and the statements made in the protest petition do not exhibit the commission of any of the offences for which the learned SDJM had taken cognizance.

8. In the course of his arguments, the learned counsel for the petitioner had relied upon the judgment of the Apex Court rendered in the case of Vishnu Kumar Tiwari reported in (2019) 8 SCC 27, wherein it was held as hereunder:

“42. In the facts of this case, having regard to the nature of the allegations contained in t