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Rules Magistrate Cannot Take Without Hearing Accused Under BNSS Section 223
A New Mandate: Hearing the Accused Before
In a significant ruling that clarifies a key procedural change under the , the has held that a Magistrate cannot take of an offence on a complaint without first giving the accused an . Justice Biswajit Palit, while allowing a petition under , set aside an order passed by the Chief Judicial Magistrate, West Tripura, for non-compliance with .
The Dispute and the Complaint
The case originated from a complaint filed by against Dipankar Majumder and Maitri Majumder (the petitioners) and others on before the . The complaint alleged offences under various sections of the , including Sections 61(2), 314, 316, 318, 320, 321, 323, and 324. On the very same day, the CJM took of the offences and transferred the matter to another court for trial. The petitioners were not heard before was taken.
Petitioner’s Challenge and State’s Defense
The petitioners approached the High Court arguing that the CJM’s order violated the newly introduced , which mandates that “ of an offence shall be taken by the Magistrate without giving the accused an .” They relied on the ’s decision in , which had already interpreted this proviso as placing an on taking without hearing the accused.
The State opposed the petition, contending that there was no illegality because the CJM had not recorded the statement of the complainant or witnesses and had simply transferred the case. The State cited the older rulings in and to argue that the earlier procedure under was still valid.
Court’s Analysis: Section 223 BNSS vs. Old CrPC
The High Court carefully examined the difference between the old CrPC and the new BNSS. Under Section 200 of the CrPC, a Magistrate taking on a complaint was required to examine the complainant and witnesses but was not required to hear the accused beforehand. However, the BNSS, which came into effect on , introduced a crucial change in Section 223(1). The first proviso now reads: “Provided that of an offence shall be taken by the Magistrate without giving the accused an .”
Justice Palit observed that this proviso makes it mandatory for the Magistrate to hear the accused before taking . He noted that the BNSS is a complete procedural overhaul and the new requirement is not a mere formality. The court distinguished the older precedents cited by the State, noting that they were decided under the CrPC and do not apply to the BNSS regime.
Key Observations from the Bench
The court made several pivotal observations:
“It shall be mandatory for the Magistrate before taking of offence on any complaint to hear the accused and thereafter shall either proceed to take of offence upon examination of the complainant and his witnesses, if any present.”
“An order passed on any complaint after directly taking of any offence without hearing the accused would amount to and also and .”
The court also quoted the ’s holding in Kushal Kumar Agarwal that the proviso “puts an on the power of the Court to take by providing that of an offence shall be taken by the Magistrate without giving the accused an .”
Final Verdict and Directions
Allowing the petition, Justice Palit set aside the CJM’s order dated and remanded the matter back to the Chief Judicial Magistrate, West Tripura, for fresh consideration. The CJM has been directed to proceed in accordance with and afford the accused an before taking . The parties are to appear before the CJM on . Additionally, the High Court ordered that a copy of this judgment be circulated to all criminal courts across the State of Tripura to ensure uniform compliance with the new procedural mandate.
This ruling reinforces the BNSS’s departure from the CrPC by introducing a for accused persons at the very threshold of criminal proceedings. It serves as a reminder to all Magistrates that the on a complaint without hearing the accused is no longer permissible under the law.
