Page No.# 1/7 GAHC010123142025 2025:GAU-AS:14602 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./670/2025 RAJKUMARI DAS D/O LATE KASHIRAM DAS R/O DMARUGURI, P.O. ITACHALI P.S. SADAR, DIST. NAGAON, ASSAM, PIN- 782003. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:SURAJIT DEY S/O RANJIT KR. DEY VILL- DIMARUGRI P.O. ITACHALI P.S. SADAR DIST. NAGAON ASSAM PIN-782003 Advocate for the Petitioner : MR. S C BISWAS, B KALITA,MS. J GHOSH Advocate for the Respondent : PP, ASSAM, MR. A GANGULY (R-2),MS. P K DEVI(R-2),MR TAPOBRAT CHHETRI(R-2) BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS JUDGEMENT AND ORDER (CAV) Date : 30-10-2025 Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Page No.# 2/7 Mr. K. Baishya, learned Additional Public Prosecutor for the State and Mr. A. Ganguly, learned counsel for the respondent No. 2. 2. The petitioner, Rajkumari Das is seeking quashing of a complaint case being C.R. Case No. 575/2025 under section 61/229/318(4)/336(3)/337 of BNS, 2023, pending before the learned JMFC, Nagaon. 3. The facts in a nutshell are that correspondent No. 2, Surajit Dey, as complainant had filed a complaint dated 24/10/2025 before the court of the learned CJM, Nagaon. The gist of the allegations was that on 24/01/2008, 2008, he purchased a plot of land measuring 1-katha, 1.5-lessa from Benu Das, Deepak Das and Deepankar Das through a registered sale deed No. 141/2008 and subsequently, the name of the complainant was mutated and he came to possess the said land. It is stated that for accessing the land, he also acquired a L-shaped pathway measuring 11 feet by 250 feet from a portion of land under Patta No. 373, Dag No. 76 belonging to accused No. 2. It is stated that on 20.06.2018, the accused persons mentioned in the complaint wrongfully dispossessed the complainant leading him to file a land grabbing case before the court at Nagaon being Special (LG) Case No. 30/2018 in which the accused persons filed their written statements. 4. It is further alleged that the accused persons by fraudulently making certain documents entered into an agreement with a builder by the name Royal Mansion, Nagaon Commercial-cum-Apartment over a land of 2-Bighas, 1-Katha under Dag No. 76, Patta No. 373 and wrongfully included the aforesaid land of the complainant as well. Page No.# 3/7 5. The complainant has also alleged that they also obtained a fraudulent compromise decree by misleading the court on 04.09.2017 and that the complainant has instituted T.S. No. 97/2019 re-numbered as T.S. No. 235/21 challenging that compromise deed. 6. As many as 12 persons are named in the complaint as accused persons including the present petitioner, Rajkumar Das who has been arrayed as accused No. 3. 7. Mr. Biswas, learned counsel for the petitioner contends and submits that the dispute between the parties is purely a civil dispute and in connection with which other civil proceedings are also pending and therefore, the complainant/respondent has grossly abused the process of law by instituting this complaint against the petitioner and others. He accordingly submits that in terms of the settled law in this regard laid down by the Hon’ble Supreme Court about preventing criminalization of civil disputes – he seeks quashing of the complaint proceedings. 8. Mr. Ganguly, learned counsel for the respondent No. 2 submits that the complainant has legitimate grievances giving rise to liability under criminal law and therefore, the complaint filed by the respondent as complainant is not at all an abuse of court process and rather he is taking recourse to legitimate methods provided in criminal law. 9. The scanned copy of the case record was called for and received and relevant portions perused. Page No.# 4/7 10. From the case record, I find that the learned court below vide order dated 02.05.2025 accepted the complaint petition and issued notice to the opposite party to appear for hearing. It is stated in the order dated 26-06-2025, that the prayers for furnishing of copy annexures was allowed and it was also informed to the court on that day about filing of the instant criminal petition before this Court. 11. Before proceeding further, the provisions of section 223 Sub- section 1 BNSS may be reproduced hearing below – 223. Examination of complainant. (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 and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and Page No.# 5/7 the witnesses, the latter Magistrate need not re-examine them. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless- (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received. 12. Unlike the CrPC, a new provision has been inserted in the BNSS that prior to taking cognizance in a complaint case, the court has to give an opportunity of hearing to the accused. The said proviso is preceded by the stipulation in the sub-section 1 of the section [i.e. 223(1)] that the Magistrate upon receiving the complaint has to examine on oath the complainant and witnesses, if any, and reduce the substance of such examination to writing and thereafter, the said writing shall be signed by the complainant, witnesses and the Magistrate. 13. It is not clear from the statutory provision as to whether the Magistrate can issue notice to the accused as opposite party for the pre-cognizance hearing without examining the complainant or his witnesses. However, before taking of cognizance, obviously the substance of the examination of complainant and witnesses have to be before the Magistrate. 14. The provision pertaining to hearing of the accused prior to taking Page No.# 6/7 cognizance is included in the proviso which comes after the substantive provision of sub-section 1 which states about examination on oath of the complainant and witnesses. 15. Thus, on reading of the statute, there may not be bar for issuing notice to the accused before examination of complainant or witnesses – but the natural and logical sequence would be to examine the complainant and witnesses and thereafter, issue notice to the accused. In the instant case, upon perusing the case record received from the learned court below, it has not come to my notice any material regarding examination of complainant and his witnesses. Therefore, in all probability, the said exercise has been yet been done. It is contended by the petitioner side that the petitioner is aggrieved by the order dated 02.05.2025, issuing notice to appear. However, the learned trial court is yet to take cognizance and notice has been issued to the petitioner not as an accused but as an opposite party to participate in the pre-cognizance hearing in terms of proviso to section 223(1) BNSS. Only thereafter, the question of taking cognizance would arise. Therefore, the grievance of the petitioner about being issued notice to appear at the stage of pre-cognizance and seeking quashing of the proceedings – can also be said to be premature. 16. The newly incorporated statutory provision mandates the court upon receiving a complaint to give an opportunity to the accused to address the court on the point of cognizance. Therefore, the court is bound to issue notice to the accused for the same purpose and therefore, such an exercise cannot be called illegal. In any case, the Page No.# 7/7 learned trial court has issued notice to the accused persons including the present petitioner as opposite parties rather than as accused. 17. However, at the same time, I am of the considered view that the examination of the complainant and his witnesses also has to be conducted before the issue of cognizance is decided by the learned trial court. 18. In the given facts and circumstances and in the backdrop of the aforesaid above discussion – I am of the considered view that the matter should be remanded back whereupon, the learned trial court be pleased to examine the complainant and his witnesses, if any, in terms of section 223(1) BNSS and thereafter, hear the accused persons as opposite parties – so as to arrive at the decision as to whether to take cognizance or not. 19. The further proceedings before the learned trial court were stayed by the order dated 16.07.2025. The stay is hereby vacated. Needless to say that, after the aforesaid exercise, if the learned trial court is pleased to take cognizance then, the petitioner would be at liberty to take recourse to the legitimate options provided by law. 20. The instant criminal petition stands disposed of on the aforesaid terms. JUDGE Comparing Assistant