Page No.# 1/7 GAHC040014482025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : Crl.Rev.P./30/2025 Smti Yake Sorum Wife of Shri Bikas Sorum, present resident of SBI Colony, Daporijo, PO and PS Daporijo, Upper Subansiri District, Arunachal Pradesh. VERSUS The State of AP and Anr represented by the PP of AP 2:Tabom Guha Age: 0 Occupation : Son of Late Tamar Guha present resident of New Market Daporijo PO and PS Daporijo Upper Subansiri District Arunachal Pradesh and permanent resident of Guha Village Nilling Circle PO and PS Daporijo Upper Subansiri District Arunachal Pradesh Advocate for the Petitioner : Duyu Laji, Ojong Nitik Advocate for the Respondent : P P of AP, Legal Aid Counsel,Mipe Ete Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE BUDI HABUNG ORDER 11.09.2026 Heard Mr. D. Laji, learned counsel for the petitioner. Also heard Ms. L. Hage, learned Additional Public Prosecutor for the State respondent No.1 and Mr. M. Ete, learned Legal Aid counsel for the respondent No.2. 2. This criminal revision petition under Sections 438/528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has been preferred by the petitioner challenging the judgment and order dated 08.07.2025 passed by the learned Chief Judicial Magistrate, Daporijo, in C.R. Case No. 05/2025 [Smti. Yake Sorum vs. Shri Tabom Guha], whereby the complaint filed by the petitioner under Section 223 read with Section 227 of the BNSS, alleging commission of offences punishable under Section 318, sub-sections (3) and (4) of the BNS, has been dismissed at the threshold. 3. The facts leading to the filing of this criminal revision petition are that a complaint case was filed before the Court of the learned Chief Judicial Magistrate, Daporijo, inter alia alleging therein that respondent No. 2 entered into an agreement with the petitioner in connection with a loan transaction between the petitioner and respondent No. 2, whereby respondent No. 2 had taken a loan of Rs. 10 lakhs from the petitioner on a returnable basis, carrying interest at the rate of 10% per month, to be repaid in the month of 2016. On demand, respondent No. 2 refused to repay the money received from the petitioner and contended that he was not liable to repay the same to the petitioner as the amount had been received by him at the direction of the then MLA, Shri Dikto Yekar. Page No.# 3/7 4. It is submitted that although respondent No. 2 has not denied having signed the agreement, he has denied having taken the money from the petitioner on return basis thereby cheated the petitioner. 5. This Court is of the view that the aforesaid aspect, particularly the fact that although the respondent has not denied his signature on the promissory note/money/loan agreement, he has denied having taken the money on loan and refused to repay the same, are matters which require consideration in accordance with the procedure prescribed for a complaint case. As such, at this stage, the Court is not required to record any finding on disputed facts. 6. Section 223 of the BNSS prescribes the procedure to be followed by the Magistrate while taking cognizance of an offence on a complaint. Section 223 of the BNSS, being relevant to the present case, is reproduced below: “Section 223 of BNSS (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 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 Page No.# 4/7 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.” 7. The aforesaid provision under Section 223 of the BNSS contemplates examination on oath of the complainant and the witnesses present, subject to the statutory exceptions contained therein. 8. Section 226 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, specifically deals with the dismissal of a complaint. Section 226 of BNSS, being relevant, is also reproduced below: “226. Dismissal of complaint.— If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.” 9. Section 227 of the BNSS, on the other hand, provides that if, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate shall proceed with the case and issue process. 10. In the instant case, the impugned order dated 08.07.2025 passed by the learned Chief Judicial Magistrate, Daporijo, in C.R. Case No. 05/2025, neither discloses that the petitioner/complainant was examined on oath in accordance with the provisions of Section 223 of the BNSS, 2023, nor, does it disclose the examination of any witness produced by the petitioner. 11. The learned Magistrate has proceeded to examine and consider the allegations made in the complaint on merits and has dismissed the complaint. Page No.# 5/7 12. The learned Magistrate recorded a finding that the dispute involved in the complaint was civil in nature. The learned Magistrate further stated that Money Suit No. 08/2019 had already been filed by the complainant before the Court of the learned Civil Judge (Senior Division), Daporijo, and that the same was dismissed by the said Court. The learned Magistrate further observed that, instead of filing an appeal against the judgment dated 06.05.2025 passed by the learned Civil Judge (Senior Division), Daporijo, the complainant had approached the Court for criminal prosecution against the respondent No.2 in respect of the loan transaction entered into between the parties. 13. Mr. Ete, learned counsel appearing for respondent No. 2, fairly submits that no notice was issued to respondent No. 2 before passing the impugned order dated 08.07.2025 by the learned Chief Judicial Magistrate, Daporijo, in Complaint Case No. C.R. 05/2025. 14. This Court is of the view that whether the ingredients of the alleged offences are made out or not; and whether the allegation is purely civil in nature or not, have to be considered by the learned Trial Court in accordance with law. 15. Ms. Hage, learned Additional Public Prosecutor, also fairly submits that, in the present case, the learned Magistrate, after receipt of the complaint, ought to have examined the complainant and the witnesses in accordance with law and thereafter ought to have proceeded in accordance with the provisions of the BNSS, including by taking cognizance and issuing process, after following the procedure prescribed therein, or dismissing the complaint in terms of Section 226 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 16. In support of her submission, the learned Additional Public Prosecutor has Page No.# 6/7 referred to the decision of the Hon’ble Supreme Court in the case of Dilip Kumar vs. Brajraj Shrivastava & Anr., reported in 2023 SCC OnLine SC 916. Paragraphs 4 and 5 thereof, being relevant, are reproduced below: ”4. We have carefully perused the order dated 18 th September, 2008 passed by the learned Magistrate and earlier order of 22nd August, 2008. Under sub-Section (1) of Section 202 of the Cr.P.C., the learned Magistrate has a discretion either to inquire into the case himself, or to direct a Police Officer to investigate and submit a report. In this case, he took recourse to the first option. A perusal of the complaint shows that eight witnesses were specifically named in the complaint. The learned Magistrate did not examine any of them. In the order dated 18th September, 2008, the learned Magistrate has not recorded reasons for not recording the statements of other witnesses specifically cited in the complaint. The law is well settled, which is found to have been reiterated in the decision in the case of Mohinder Singh (supra). After taking recourse to sub-Section (1) of Section 202 of the Cr.P.C., before dismissing a complaint by taking recourse to Section 203 of the Cr.P.C., the learned Magistrate has to consider the statements of the complainant and his witnesses. In this case, the learned Magistrate has not examined the other witnesses. The view taken by this Court in the case of Nagawwa (supra) is no different. 5. Therefore, we find no error when the High Court came to the conclusion that the complaint deserves to be remanded 2 (1976) 3 SCC 736 from the stage of holding an inquiry under sub-Section (1) of Section 202 of the Cr.P.C.” 17. In view of the facts and circumstances of the case, upon hearing the parties, and on perusal of the decision of the Hon’ble Supreme Court in Dilip Kumar (supra), this Court finds that the impugned order dated 08.07.2025 passed by the learned Chief Judicial Magistrate, Daporijo, in Complaint Case No. C.R. 05/2025 suffers from procedural irregularity and, hence, cannot be sustained. 18. Accordingly, the present criminal revision petition is allowed. 19. The impugned order dated 08.07.2025 passed by the learned Chief Judicial Magistrate, Daporijo, in Complaint Case No. C.R. 05/2025 [Smti. Yake Sorum vs. Shri Tabom Guha] is accordingly set aside and quashed. Page No.# 7/7 20. The complaint case referred to above, being C.R. Case No. 05/2025 [Smti. Yake Sorum vs. Shri Tabom Guha], is restored to its original file and number. 21. The learned Chief Judicial Magistrate, Daporijo, shall consider the complaint afresh and proceed strictly in accordance with the provisions of the BNSS. The learned Magistrate shall follow the procedure contemplated under Sections 223, 225, 226 and 227 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, as may be applicable. 22. In terms of the above observations, the instant criminal revision petition stands disposed of. 23. It is made clear that this Court has not expressed any opinion on the merits of the allegations. Therefore, the learned Magistrate shall consider the matter independently and uninfluenced by any observation made in this order. JUDGE Sabnam Mepo (SPA)