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2025 Supreme(Online)(Gau) 7913
GAUHATI HIGH COURT
MANISH CHOUDHURY, J
GAJIUR RAHMAN AND 4 ORS – Appellant
Versus
THE STATE OF ASSAM AND ANR – Respondent
Crl.Pet./1017/2025
For the Appellants/Petitioners: MR A ALI, MS K TAYE, MS. M KHATUN
For the Respondents: PP, ASSAM
The court emphasized the necessity of providing the accused an opportunity to be heard before taking cognizance of a complaint as per relevant statutory provisions.
Headnote:The judgment analyzes the provisions of Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, concerning the cognizance of complaints. The petitioners sought quashing of a complaint case against them; however, the court found that they had not yet been afforded the opportunity to be heard as required. The court determined that the petitioners should first exhaust their legal remedies before proceeding further. The petition was not entertained at this stage.
| Table of Content |
|---|
| 1. summary of the petitioners' situation and the complaint. (Para 2 , 3) |
| 2. requirement for opportunity to be heard before cognizance. (Para 4) |
| 3. court's view on legal procedure and remedies. (Para 5 , 6) |
| 4. conclusion on the petition not being entertained. (Para 7) |
ORDER
21.08.2025 Heard Mr. A. Ali, learned counsel for the petitioners and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent, State of Assam.
2. The instant criminal petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita [ BNSS ], 2023 is preferred seeking setting aside and for quashing of the proceedings of a complaint case, registered and numbered as C.R. Case no. 178/2025, before the Court of learned Judicial Magistrate, First Class, Darrang [‘the Trial Court’, for short] at Mangaldai.
3. The petitioners have approached this Court after issuance of a notice from the Trial Court whereby they have been informed that the complainants, named Rameswar Deka and Salaur Rahman have filed a complaint before the Trial Court and the said complaint has been admitted for hearing. By the notice, the petitioners have been asked to appear before the Trial Court personally or through their engaged advocate.
4. On a query made to the learned counsel for the petitioners, it is submitted that the Trial Court has not yet taken cognizance on the complaint.
5. As per the first proviso to sub-section [1] of Section 223 of the BNSS , no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. As per sub-section [1], a Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing.
6. The petitioners have not yet availed the opportunity of being heard, provided by the first proviso to sub-section [1] of Section 223 of the BNSS . In such view of the matter, this Court is of the considered view that the petitioners shall first exhaust the remedy of opportunity of being heard provided by the first proviso to sub-section [1] of Section 223 of the BNSS before approaching this Court. Liberty stands reserved to the petitioners to avail appropriate remedy if they find themselves aggrieved by any order passed by the Trial Court after hearing them.
7. For the aforesaid reason, the criminal petition is not entertained at this stage.
