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.

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 affording an opportunity to the petitioners of being heard before taking such cognizance. On 13th November, 2024 the opposite party herein was examined and his statement on solemn affirmation was recorded and the trial Magistrate fixed 16th December, 2024 for filing of requisites. On filing of requisites by the opposite party, learned trial Magistrate issued process to the petitioners.

2. Being aggrieved by and dissatisfied with the orders dated 13.09.2024 relating to taking cognizance and order dated 13.11.2024., Mr. Ayan Bhattacharya, learned senior Counsel, appearing on behalf of the petitioners submits that the impugned order whereby purported cognizance was taken by the CJM is de hors the edict of law as promulgated in terms of section 223 of the BNSS, in as much as the instant petitioners being the alleged accused were not afforded an opportunity of being heard before such cognizance was taken and therefore, the impugned orders by which the cognizance was taken and the process was issued ought to be set aside, since the same suffers from gross illegality and the same are non-est in the eye of law.

3. Mr. Sabyasachi Roy Chowdhury learned Counsel appearing on behalf of the opposite parties submits that under the old law, there was no provision regarding giving accused an opportunity of being heard before the cognizance of an offence is taken by the Magistrate. Though it has been argued that section 223 (1) of BNSS is in pari materia to section 200 Cr.P.C., however the distinction is that in section 200 Cr.P.C. the words used by the legislature were ‘a magistrate taking cognizance of an offence’. while the words used in section 223(1) BNSS are ‘a magistrate having jurisdiction while taking cognizance of an offence’. Thus under the BNSS 2023 the legislature has specifically stated in section 223 (1) that cognizance of an offence is a process which starts when the magistrate proceeds with the complaint under chapter XVI of BNSS 2023 and examines the complainant and his witnesses and takes further steps and before the cognizance is finally taken, as per the proviso, the magistrate is required to give an opportunity of hearing to the accused.

4. Accordingly under section 223 of the BNSS a Magistrate on receiving a complaint shall examine the complainant and the witness as produced by the complainant and may take further steps under section 224 or 225 of BNSS. Thereafter, the magistrate would give an opportunity to the accused against whom allegation and evidence have come on record, under section 223 or 225 of BNSS to make submissions before the court, before the cognizance of the offence is finally taken. In this context he relied upon the judgment of Shri Basanagouda R. Patil Vs. Shir Shivananda S. Patil reported in 2024 SCC Online Kar 96.

5. He further