Page No.# 1/6 GAHC040012292025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Rev.P./26/2025 Tumge Jini and 2 Ors Son of Shri Mitum Jini, Upper Colony, PO and PS Aalo, West Siang District, Arunachal Pradesh. 2: Geba Jini Age: Occupation : Son of Shri Tumge Jini Upper Colony PO and PS Aalo West Siang District Arunachal Pradesh. 3: Geken Jini Age: Occupation : Son of Shri Tumge Jini Upper Colony PO and PS Aalo West Siang District Arunachal Pradesh VERSUS The State of AP and 5 Ors represented by the PP of AP 2:Kenmar Pakam Age: 0 Occupation : Son of Late Torken Pakam Logum Jini village PO and PS Aalo West Siang District Arunachal Pradesh. 3:Yomdam Ango Page No.# 2/6 Age: 0 Occupation : Son of Karyom Ango Logum Jini village PO and PS Aalo West Siang District Arunachal Pradesh. 4:Horpin Lollen Age: 0 Occupation : Son of Muksor Lollen Tadin Village PO and PS Aalo West Siang District Arunachal Pradesh. 5:Damjum Diyum Age: 0 Occupation : Son of Mordam Diyum Upper Colony Village PO and PS Aalo West Siang District Arunachal Pradesh. 6:Tugo Kamdak Age: 0 Occupation : ASI Aalo Police Station West Siang District Arunachal Pradesh Advocate for the Petitioner : Rinchin Ledo Thungon, Rei Tadung Advocate for the Respondent : P P of AP, Taying Nega,Tao Tarin,Jumgam Jini Page No.# 3/6 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG ORDER 03.12.2025 Heard Mr. R. L. Thungon, learned counsel for the petitioners. Also heard Mr. T. Ete, learned Additional Public Prosecutor for the State respondent No. 1; and Mr. J. Jini, learned counsel for respondent Nos. 2 to 4. 2. The petitioners, three in number, have filed this application under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, assailing the order dated 28.03.2025 passed by the learned Chief Judicial Magistrate, Aalo, in G.R. Case No. 25/24, arising out of Aalo P.S. Case No. 19/24, under Sections 324/34 of the IPC. 3. The factum of the case is not disputed. The undisputed facts reveal that the FIR dated 29.03.2024 was lodged against the petitioners, leading to the registration of the aforesaid Aalo P.S. Case No. 19/24 under Sections 324/34 of the IPC on 30.03.2024. Upon completion of investigation, the I.O submitted the chargesheet against the present petitioners on 16.05.2024 under Sections 323/34 of the IPC. 4. Thereafter, the learned CJM, Aalo, vide order dated 28.03.2025, observed that the chargesheet discloses the commission of a non-cognizable offence and therefore, in view of Section 2(h) of the BNSS, 2023 (erroneously referred to as Section 2(d) of the Cr.P.C.), the chargesheet shall be deemed to be a complaint and the investigating officer shall be deemed to be the complainant. Treating the case as a complaint case, the learned CJM, Aalo, having found a prima facie case made out against the accused under Sections 323/34 of the IPC, took cognizance without examining the complainant by Page No.# 4/6 applying the proviso to Section 200 of the Cr.P.C. According to the petitioner, the applicable provision in the instant case is Section 223 of the BNSS and not Section 200 of Cr.P.C. 5. It is this order taking cognizance that has aggrieved the petitioners, who have filed the present petition contending that the order is vitiated for non- compliance with the first proviso to Section 223(1) of the BNSS, 2023, which mandates that no Magistrate shall take cognizance under this section without giving the accused an opportunity of being heard. 6. Mr. Thungon, learned counsel for the petitioners, submits that though the chargesheet was filed on 16.05.2024, the cognizance was taken after 01.07.2024, when the BNSS came into force. Therefore, the procedure under the BNSS was mandatorily applicable. Thus, taking cognizance of the case without hearing the accused in terms of the first proviso to Section 223 of the BNSS is illegal. He therefore, prays for setting aside the impugned order and further prays for a direction to proceed with the trial from the pre-cognizance hearing stage. 7. In this regard, Mr. Ete, learned Additional Public Prosecutor, has fairly supported the contention of the petitioners. In support of his submission, the learned Additional Public Prosecutor placed reliance upon the judgment of the Gauhati High Court in RE: XXX vs. State of Arunachal Pradesh & Ors., reported in 2024 (5) GLT 756, which in turn had relied upon the law laid down in Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors., reported in (1994) 4 SCC 602, wherein it has been held that cognizance on a pending investigation on or after 01.07.2024 would be taken as per the BNSS and all subsequent proceedings, including inquiry, trial or appeal, would be Page No.# 5/6 conducted as per the procedure of the BNSS. 8. In view of the above, it is now well settled, as held in RE: XXX vs. State of Arunachal Pradesh & Ors. (supra) relying on Hitendra Vishnu Thakur (supra), that where the chargesheet or any procedural step occurs after the enforcement of a new procedural statute, the subsequent steps/proceedings, including taking of cognizance, inquiry or trial, shall be governed by the new procedure, i.e., the BNSS, 2023. 9. In the present case, the chargesheet was filed on 16.05.2024, i.e., before the commencement of the BNSS on 01.07.2024, but cognizance was taken on 28.03.2025. Hence, the learned CJM, Aalo, was required to strictly follow Section 223 of the BNSS, which provides that no Magistrate can take cognizance of an offence without giving the accused an opportunity of being heard. 10. The first proviso to Section 223 of the BNSS, 2023, reads as under: “Provided that no cognizance of an offence under this section shall be taken by the Magistrate without giving the accused an opportunity of being heard.” 11. In the present case, the learned CJM, Aalo, took cognizance directly on 28.03.2025 without issuing any notice or providing a pre-cognizance hearing to the petitioners. Therefore, the mandatory requirement under the first proviso to Section 223(1) of the BNSS has not been fulfilled. This omission, goes to the root of the matter. The requirement under the proviso is not directory but mandatory, as it creates a valuable right for the accused at the pre-cognizance stage. Consequently, the impugned order dated 28.03.2025, whereby the Page No.# 6/6 learned CJM, Aalo, has taken cognizance, as well as the consequential summons dated 13.06.2025, cannot be sustained. 12. In view of the above discussion, this Court holds that the impugned order dated 28.03.2025 passed by the learned Chief Judicial Magistrate, Aalo, in G.R. Case No. 25/24 taking cognizance of the offence under Sections 323/34 of the IPC, having been passed in violation of the mandatory requirement of the first proviso to Section 223(1) of the BNSS, 2023, is hereby set aside. 13. The consequential summons dated 13.06.2025 issued to the petitioners are also quashed. 14. The matter, as prayed for, is remanded back to the learned Chief Judicial Magistrate, Aalo, with a direction to proceed afresh from the pre-cognizance stage strictly in accordance with Section 223 of the BNSS by issuing notice to the accused persons and by affording them an opportunity of hearing. 15. With the above observations, this petition stands allowed and disposed of. JUDGE Comparing Assistant