Page No.# 1/6 GAHC010030682026 2026:GAU-AS:11387 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./239/2026 SHREE VISHWANATH MARWARI DATABYA AUSHDHALAYA AND 16 ORS. A REGISTERED SOCIETY HAVING ITS OFFICE AT ASSAM TRUNK ROAD,P.O., P.S. AND DIST. DIBRUGARH, ASSAM, PIN-786001, REPRESENTED BY ITS PRESIDENT AND SECRETARY. 2: SRI RAJAN LOHIA SON OF LATE JHABARMAL LOHIA THE PRESIDENT SHREE VISHWANATH MARWARI DATABYA AUSHDHALAYA AT ASSAM TRUNK ROAD P.O. P.S. AND DIST. DIBRUGARH ASSAM PIN-786001 3: SRI ANIL KUMAR PODDAR SON OF LATE BISWANATH PODDAR THE SECRETARY SHREE VISHWANATH MARWARI DATABYA AUSHDHALAYA AT ASSAM TRUNK ROAD P.O. P.S. AND DIST. DIBRUGARH ASSAM PIN-786001 4: SRI JYOTI PRASAD KANOI SON OF LATE SITARAM KANOI RESIDENT OF ZIG ZAG ROAD CHOWKIDINGHEE DIBRUGARH ASSAM PIN-786001. 5: SRI SAJJAN KUMAR KEJRIWAL SON OF LAE MAHABIR PRASAD KEJRIWAL Page No.# 2/6 RESIDENT OF TARUN SAMITY LANE SHANTI PARA DIBRUGARH ASSAM PIN-786001 6: SRI BADRI GARODIA SON OF LATE DEBIDUTT GARODI RESIDENT OF LAL BAHADUR SHASTRI MARG PALTAN BAZAR DIBRUGARH ASSAM PIN-786001. 7: SRI BAJRANG DHANUKA SON OF LATE BABULAL DHANUKA RESIDENT OF ELECTRICAL ENTERPRISE H.S. ROAD DIBRUGARH ASSAM PIN-786001. 8: SRI NIRMAL GARODIA SON OF LATE RADHAKISHAN GARODIA RESIDENT OF BABULAL PODDAR PATH JHALUKPARA DIBRUGARH ASSAM PIN-786001. 9: SRI ARUN BAGARIA SON OF LATE RADHA SHYAM BAGARIA RESIDENT OF SHANI MANDIR ROAD JHALUKPARA DIBRUGARH ASSAM PIN-786001. 10: SRI VIJAY AGARWAL SON OF LATE MAHABIR PRASAD AGARWALLA RESIDENT OF GANPATI MARBLES B.N. MODI ROAD DIBRUGARH ASSAM PIN-786001. Page No.# 3/6 11: SRI ASHOK TULSYAN SON OFL ATE LOKNATH TULSYAN RESIDENT OF H.S. ROAD DIBRUGARH ASSAM PIN-786001. 12: SRI RAJ KUMAR AGARWAL SON OF LATE KHYALLRAM AGARWALLA RESIDENT OF MAHALAYA ROAD NEAR GOVERNMENT BOYS SCHOOL FIELD JHALUKPARA DIBRUGARH ASSAM-786001. 13: SRI ANKUR BAWARI SON OF SRI KISHANLAL BAWARI RESIDENT OF C/O KL AGENCY NEAR JAIN MANDIR NEW MARKET DIBRUGARH ASSAM PIN-786001 14: SRI RAKESH GARODIA SON OF LATE BAJRANGLAL GARODIA RESIDENT OF C/O LN.N. GARODIA R.K.B. PATH DIBRUGARH ASSAM PIN-786001 15: SRI SANDEEP CHAMARIA SON OF SRI SHYAM SUNDAR CHAMARIA RESIDENT OF C/OM/S SHYAM MOTORS KHEMKA MARKET R.K.B. PATH DIBRUGARH ASSAM PIN-786001 16: SRI SHASHI AGARWAL SON OF LATE MADANLAL AGARWAL RESIDENT OF C/O SANJAY TRADERS NEAR INDIAN BANK R.N.C. PATH DIBRUGARH ASSAM Page No.# 4/6 PIN-786001. 17: SRI BINAY GARODIA SON OF SRI BISWANATH GARODIA RESIDENT OF GS MODI ROAD DIBRUGARH ASSAM PIN-786001 VERSUS SRI PRAPHULL JAIN SON OF LATE CHANDRABHAN JAIN, RESIDENT OF JHALUKPARA, DIBRUGARH, ASSAM, PIN-786001. Advocate for the Petitioner : MR. BHASKAR DUTTA, SENIOR ADVOCATE, MS L RONGPIPI,MR JITENDRA DAS,MR. SAILENDRA DEKA Advocate for the Respondent : MR. N N UPADHYAYA, MR. S UPADHAYA,MR. B B KAKATI BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA ORDER 12.08.2026 Heard Mr. Bhaskar Dutta, learned Senior Counsel assisted by Mr. S. Deka, learned counsel for the petitioners. Also heard Mr. N.N. Upadhyaya, learned counsel for the sole respondent. 2. The petitioners have preferred this instant application under Section 528 of the BNSS, 2023, before this Hon'ble Court praying for quashing of the impugned proceeding of C.R. Case No.06/2026 pending before the Judicial Magistrate 1st Class, Dibrugarh, under sections 61/351/356/196 of the BNS, 2023, issuing Page No.# 5/6 notices upon the petitioners without any subjective satisfaction. 3. The brief facts leading to this instant application is that on 19.01.2026, the respondent herein, filed a Complaint being C.R. Case No.06/2026, before the learned Chief Judicial Magistrate at Dibrugarh, against the petitioners, which was then, transferred to the learned Judicial Magistrate 1st Class at Dibrugarh for disposal. 4. On the basis of the said complainant, the learned Magistrate passed the following order:- “Perused the case Record. Complainant is present. Considering the above, this Court deems it fit to issue notice to the opposite party U/S 223(1) Proviso of BNSS. Complainant to take steps. Fixing: 18.02.2026 For: Appearance/Cognizance Hearing” 5. The learned Senior Counsel for the petitioners has submitted that in terms of Section 233 of BNSS, a Magistrate having jurisdiction upon receipt of the complainant is required to examine the complainant and the witnesses present, if any and only thereafter, he is to issue a notice to the accused with a view to giving him an opportunity of being heard. However, as is evident from the Page No.# 6/6 impugned order, notice has been issued to the accused/petitioner without examining the complainant/or his witnesses, which renders the impugned order illegal. In support of his aforesaid submission, the learned Senior Counsel has referred to a decision of a Coordinate Bench of this Court in Bhupendra Choudhury and Another v. Arun Choudhury reported in 2025 SCC OnLine Gau 5132, wherein, it has been held as follows:- “17. In view of the aforesaid discussions, this Court is of the considered view that issuance of notice to the accused prior to examination of the Complainant and the witnesses, if any, is not what is mandated under Section 223(1) of BNSS, 2023, rather what is mandated is notice to be issued to the Accused only after examination of the Complainant and the present witnesses, if any. However, this is only when the Magistrate does not want to exercise his powers under Section 226 of the BNSS, 2023.” 6. The learned counsel for the respondent has conceded that the impugned order suffers from infirmity in view of the provisions of Section 223 of BNSS as explained in Bhupendra Choudhury (Supra). 7. In view of the above, without entering into merits of the instant petition, the impugned order is set aside and it is directed that the learned Magistrate shall proceed afresh form the stage of Section 233 of the BNSS in terms of the aforesaid decision in Bhupendra Choudhury (Supra). 8. The petition stands allowed accordingly. JUDGE Comparing Assistant