Page No.# 1/6 GAHC010276952025 2025:GAU-AS:17653 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1596/2025 MD SAMAD ALI AND 3 ORS. SON OF LATE SAMAUL ALI. 2: JAYNAB BIBI WIFE OF SAMAD ALI. 3: RASHIDU BEGUM DAUGHTER OF SAMAD ALI 4: MEHDI ARIF ALI SON OF SAMAD ALI ALL THE RESIDENTS OF NO. 2 CHOTA HAPJAN VILLAGE P.O. BARHAPJAN P.S. DOOMDOOMA IN THE DISTRICT OF TINISUKIA ASSAM PIN CODE 786150 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SAFIJUL HAQUE SON OF LATE SOFIKUL HAQUE RESIDENT OF LANGICHUK P.O. P.S. KALIABOR IN THE DISTRICT OF NAGAON ASSAM PIN CODE 781237 Advocate for the Petitioner : MR. S S S RAHMAN, MS B H SHIRIN,MS S Z HAYAT Page No.# 2/6 Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 18-12-2025 Heard Mr. S.S.S. Rahman, learned counsel for the petitioners and Mr. M.P. Goswami, learned Additional Public Prosecutor for the respondent no. 1, State of Assam. 2. Having regard to the facts projected in this criminal petition preferred under Section 528, Bharatiya Nagarik Suraksha Sanhita, 2023, the criminal petition is taken up for consideration at the motion stage itself for the reasons mentioned herein below. 3. The petitioner no. 1 and the petitioner no. 2 are the father and the mother of the petitioner no. 3. The petitioner no. 4 is a son of petitioner nos. 1 and 2 and a brother of the petitioner no. 3. 4. A discussion for solemnization of marriage between the petitioner no. 3 and one Saminul Haque, who is a son of the respondent no. 2-complainant herein. Though the discussion for solemnization of marriage between the petitioner no. 3 and Saminul Haque progressed to an extent, the family of the petitioners requested the family of the respondent no. 2 to supply the documents of Saminul Haque to submit an application for registration of marriage. However, at that point of time, the family of the proposed bride- Page No.# 3/6 groom backtracked. 5. Aggrieved by such backtrack and alleged acts of cheating, entering into physical relation on the promise of marriage, etc., the petitioner no. 3 lodged a First Information Report [FIR] before the Officer In-Charge, Doomdooma Police Station on 25.03.2025 and the said FIR was registered as Doomdooma Police Station Case no. 52/2025 for the offences under Sections 318[4]/69/351[2] of the Bharatiya Nyaya Sanhita, 2023. In the FIR, Saminul Haque was arraigned as the accused. The investigation of Doomdooma Police Station Case no. 52/2025 had thereafter, proceeded. Upon completion of investigation, the Investigating Officer of the case submitted a charge-sheet in connection with Doomdooma Police Station Case no. 52/2025 vide Charge-Sheet no. 61/2025 on 12.05.2025 finding a prima facie case established against Saminul Haque for committing the offences under Sections 318[4]/69/351[2], BNS. 6. On submission of charge-sheet, the case was registered as PRC no. 280/2025 [G.R. Case no. 221/2025]. As the offence under Section 69, BNS is exclusively sessions triable, the case stood committed to the Court of Sessions, Tinsukia. On receipt of the case records, the case has been registered as Sessions Case no. 109[T]/2025. Saminul Haque who has been charge-sheeted, entered appearance before the Court of Sessions on 22.08.2025 and on his appearance, he was allowed to remain on previous bail. 7. Close on the heels of these developments, the respondent no. 2 as the complainant who is the father of Saminul Haque, instituted a complaint before the Court of Sub-Divisional Judicial Magistrate, Kaliabor [‘the Trial Court’, for Page No.# 4/6 short] on 25.07.2025 against these four petitioners alleging commission of offences under Sections 336/296/324/351/3[5], BNS. The complaint has been registered as C.R. Case no. 182/2025. Seeking quashing of the proceedings of C.R. Case no. 182/2025, the present criminal petition has been preferred. 8. By an Order dated 30.10.2025, the Trial Court directed the complainant, that is, the respondent no. 2 herein to take steps for issuance of notice to the accused persons, that is, the petitioners herein and posted the case on 12.12.2025 for service report/hearing. 9. Mr. Rahman, learned counsel for the petitioners has submitted that the complaint is a counterblast to the FIR dated 25.03.2025 which resulted in submission of a charge-sheet and finally, Sessions Case no. 109[T]/2025. The criminal petition has been instituted abusing the process of law. Moreover, the ingredients of the offences alleged in the complaint are totally absent. 10. Section 223 of the BNSS has provided that 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. The first proviso to sub-section [1] of Section 223, BNSS has provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 11. From the impugned Order dated 30.10.2025, it is evident that the Trial Page No.# 5/6 Court is yet to take cognizance on the complaint. By Order dated 30.10.2025, notices have been issued to the petitioners who have been arraigned as accused in the complaint to appear before the Trial Court. It is inherent in the proviso to sub-section [1] to Section 223, BNSS that before taking cognizance, the Trial Court has to provide an opportunity of being heard to the accused persons to present their case. 12. Evidently, the proceeding of C.R. Case no. 182/2025 is presently at a pre- cognizance stage and the petitioners, arraigned as accused therein, have a right to represent their case before the Trial Court. It is only after consideration of the version of the complainant and the petitioners, the Trial Court would decide whether to take cognizance on the complaint or not. 13. In such view of the matter, the instant criminal petition is, in essence, pre- mature in nature. This Court is of the considered view that the petitioners should first appear before the Trial Court in response to the summons and represent their case. The petitioner can bring the proceedings already pending before the Court of Sessions in the form of Sessions Case no. 109[T]/2025 against the son of the complainant, Saminul Haque to the knowledge of the Court and advance submissions why the ingredients of the offences alleged in the complaint are not attracted in their case. The petitioners are also at liberty to urge all other legal grounds at the pre-cognizance stage. For the afore-stated reasons, this criminal petition is not entertained at this stage. 14. It is expected that the Trial Court after affording proper and reasonable opportunity of being heard to the petitioners shall decide on the complaint Page No.# 6/6 whether to take cognizance or not by way of a reasoned order. If the petitioners are aggrieved by any order passed by the Trial Court taking cognizance, the petitioners would be at liberty to avail appropriate remedy under the law. 15. With the above observations, the criminal petition is disposed of. JUDGE Comparing Assistant