JUDGMENT : Rajesh Mazumdar, J. 1.Heard Mr. T. Deuri, Learned Counsel appearing for the petitioner and also heard Mr. S. Banik, Learned Counsel appearing for the respondent number 2. The learned APP represents the State. 2. The bone of contention in this criminal petition is an order dated 3-8-2024, whereby the court of the learned S.D.J.M. Sadiya Sapakhowa had decided to take cognizance against the petitioner herein on the perusal of the statements of a complainant petition supported by an affidavit and upon hearing the learned engaged counsel for the complainant. The learned magistrate had also taken into account the statements of two witnesses under 225 B.N.S.S. 3. The facts of the case in brief is that the respondent number 2 herein had lodged an FIR before the officer in charge, Zero Point, Dhala Police Station, Tinsukia, Assam, alleging that some unknown persons had entered into a piece of land owned and possessed by the respondent number 2 herein and had illegally put up a banner of a voluntary organisation. The petitioners have been alleged to be the president and secretary of the voluntary organisation, which had allegedly entered into the land of the respondent no.2 herein. 4. Upon investigation by the concerned police station authorities, it was revealed that the land was in a tribal belt and that a civil case was already pending between the parties. Therefore, in view of the findings, the investigating officer had submitted a final report, being final report number 05/2019, dated 31-03-2019, before the learned court, terming it a civil dispute. 5. The respondent number 2 had thereafter appeared in the court of the Sub Divisional Judicial Magistrate at Sadiya, Sapakhoa, on 1-7-2024 and had filed a protest petition wherein he had prayed before the court to reject the final report submitted by the police and for further directions to the police to reinvestigate the case and thereafter submit a charge sheet against the petitioners herein. Records available also reveal that the respondent number 2 had thereafter caused affidavits to be filed by himself and two other witnesses and based on the protest petition and the statements made on affidavit, the learned SDJM had taken cognizance of the matter under section 115 (2)/329(3)/324(4)/126 (2) of the BNS -2023 against the petitioner's herein. 6. Mr. Records available also reveal that the respondent number 2 had thereafter caused affidavits to be filed by himself and two other witnesses and based on the protest petition and the statements made on affidavit, the learned SDJM had taken cognizance of the matter under section 115 (2)/329(3)/324(4)/126 (2) of the BNS -2023 against the petitioner's herein. 6. Mr. Deori, the learned counsel for the petitioner, has submitted that the learned SDJM failed to apply his mind when he decided to treat the protest petition as a private complaint without taking into consideration the final report submitted by the officer in charge of the Saikhowaghat police station. The learned counsel has submitted that, in fact, a bare perusal of the order dated 30-8-2024 reflects that the learned SDJM has recorded that he had perused the complaint petition, “supported by an affidavit”. The learned counsel for the petitioner has drawn the attention of this court to the protest petition, showing that there was no affidavit supporting it. 7. The learned counsel for the petitioner has submitted that even otherwise, the nature of the allegations levelled in the FIR, the findings of the investigating authority, which resulted in the final report and the statements made in the protest petition do not exhibit the commission of any of the offences for which the learned SDJM had taken cognizance. 8. In the course of his arguments, the learned counsel for the petitioner had relied upon the judgment of the Apex Court rendered in the case of Vishnu Kumar Tiwari reported in (2019) 8 SCC 27 , wherein it was held as hereunder: “42. In the facts of this case, having regard to the nature of the allegations contained in the Protest Petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the Protest Petition as a complaint. The fact that he may have jurisdiction in a case to treat the Protest Petition as a complaint, is a different matter. The fact that he may have jurisdiction in a case to treat the Protest Petition as a complaint, is a different matter. Undoubtedly, if he treats the Protest Petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the Protest Petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the Protest Petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court. 43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the Protest Petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR 1958 Ori 11 ] , a learned Judge of the High Court of Orissa, took the view that a Protest Petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6) “6. … In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668 ] also what was observed was “it is not very clear as to whether the Magistrate has chosen to treat the Protest Petition as complaint”. This observation would not mean that every Protest Petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the Protest Petition as a complaint, the Protest Petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The Protest Petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a Protest Petition the case is to become a complaint case.” (emphasis supplied) 44. We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. B himareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) “9. We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. B himareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) “9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the ‘B’ report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the Protest Petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a Protest Petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC.” 45. “Complaint” is defined in Section 2(d) of the Code as follows: “2. (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;” 46. If a Protest Petition fulfils the requirements of a complaint, the Magistrate may treat the Protest Petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. 9. The learned counsel for the petitioner also referred to the judgment of the Apex Court in Mukhtar Zaidi Versus The State Of Uttar Pradesh and another, reported in AIR 2024 SC 3863 wherein it was held as hereunder: 10. In this case, in fact, there is no list of witnesses as such in the Protest Petition. 9. The learned counsel for the petitioner also referred to the judgment of the Apex Court in Mukhtar Zaidi Versus The State Of Uttar Pradesh and another, reported in AIR 2024 SC 3863 wherein it was held as hereunder: 10. In this case, in fact, there is no list of witnesses as such in the Protest Petition. The prayer in the Protest Petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or is liable to be treated as a complaint, we would think that essentially, the Protest Petition in this case, is summing up of the objections of the second respondent against the final report. 11. In the present case as the Magistrate had already recorded his satisfaction that it was a case worth taking cognizance and fit for summoning the accused, we are of the view that the Magistrate ought to have followed the provisions and the procedure prescribed under Chapter XV of the Cr.P.C. Accordingly, we allow this appeal, set aside the impugned orders passed by the High Court as also the CJM, Aligarh.” 10. The learned counsel appearing for the petitioner has thereafter submitted that the learned SDJM had committed an error when he proceeded to take cognisance against the accused without giving the accused an opportunity of hearing. 11. The learned counsel for the petitioner has submitted that it is a settled position in law that before cognizance is taken based on a complaint petition, the accused must be given an opportunity of hearing. The learned counsel for the petitioner has submitted that the proviso to section 223 of the BNS ,2023 provides that a magistrate shall take no cognizance of an offence under section 223 of the , 2023 without giving the accused persons an opportunity of being heard. It is submitted by the learned counsel for the petitioner that the proviso to section 223 of the -2023 makes it mandatory for a magistrate to grant an opportunity to the accused to present his side of the story to the court before the court takes cognisance of an offence based on a complaint. 12. It is submitted by the learned counsel for the petitioner that the proviso to section 223 of the -2023 makes it mandatory for a magistrate to grant an opportunity to the accused to present his side of the story to the court before the court takes cognisance of an offence based on a complaint. 12. The learned counsel has referred to provisions of Section 223 of the BNS -2023 and the same are reproduced herein below for a ready reference: Section 223 in Bharatiya Nagarik Suraksha Sanhita, 2023 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 cognisance 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 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. 13. These provisions are similar to the provisions of Section 200 incorporated in the erstwhile CrPC. He submits that it would be apparent from the records that the magistrate did not allow any opportunity to the petitioners herein, who were accused, to place their case before the magistrate took cognizance in the matter. 13. These provisions are similar to the provisions of Section 200 incorporated in the erstwhile CrPC. He submits that it would be apparent from the records that the magistrate did not allow any opportunity to the petitioners herein, who were accused, to place their case before the magistrate took cognizance in the matter. The learned counsel for the petitioner has submitted that a serious matter like setting the criminal law into motion cannot be done as a matter of course, and the order summoning the accused must reflect that the magistrate had applied his mind to the facts of the case and the law applicable thereto. 14. The learned counsel for the petitioner has submitted that, in view of the aforesaid, the order dated 30-8-2024 deserves interference by this court, and the entire criminal proceedings set in motion by the respondent number 2 also deserve to be quashed. 15. Mr. S Banik, the learned counsel appearing for the respondent number 2, has, in his usual fairness, submitted that the learned SDJM had committed an error when he took cognisance of the offence without affording an opportunity of hearing to the accused persons, who are also the petitioners here. He has referred to the judgement of the Apex Court rendered in the case of Kushal Kumar Agarwal vs Directorate of Enforcement , neutral citation being 2025 INSC 760 , wherein it was held as follows: “The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside.” 16. The learned counsel for the respondent has however, submitted that in the present circumstances, the only relief that the petitioners would be entitled to is that this Court would set aside the order of the order taking cognizance and remand back the matter to the learned trial court to give an opportunity of hearing to the accused petitioner before deciding whether to take cognizance in the matter. The learned counsel has submitted that the entire proceedings do not warrant any interference, and the matter should be remanded back to the learned trial court, only to the extent of requiring it to give fresh consideration as to whether cognisance is required to be taken. 17. The submissions made by the learned counsel have been duly considered, and the records made available have been perused. Since there is already a consensus that the order of the Learned SDJM complained of in this petition suffers from an inherent error that cognizance of offence had been taken without giving an opportunity of hearing to the accused, which opportunity is also a mandate of the relevant provisions of Sections 223 of the BNS , 2023, this Court has no hesitation in setting aside the order dated 30-8-2024 passed by the Learned SDJM (M), Sadiya, Chapakhowa in GR case no 179/2018 (CR -03/24) arising out of Saikhowaghat PS case no 15/2018. The said order is accordingly set aside and quashed. 18. The court is now required to adjudicate whether in the facts and circumstances of the present case, the entire proceedings also deserve to be set aside and quashed, as prayed for by the learned counsel for the petitioner or whether the matter is required to be remanded back to the learned Trial Court to reinitiate the proceedings by giving a fresh consideration to the protest petition to decide as to whether to accept the same, reject the same or to treat it as a complaint petition with, as a matter of course, reasons to be reflected in the connected order. 19. There is no qualm at the bar that every Protest Petition cannot be treated or deemed to be a complaint. The fact that a particular Protest Petition may also have the attributes of a complaint cannot be denied. Depending upon the material which is made available in a Protest Petition, it may persuade the court to disagree with the conclusions arrived at by the investigating officer, and the course available to the Magistrate would be either to direct a fresh investigation or to treat it as a complaint and proceed in accordance with law. 20. Depending upon the material which is made available in a Protest Petition, it may persuade the court to disagree with the conclusions arrived at by the investigating officer, and the course available to the Magistrate would be either to direct a fresh investigation or to treat it as a complaint and proceed in accordance with law. 20. In the present case at hand, this Court finds that the protest petition did not contain a list of witnesses, and the prayer in the protest petition is to set aside the final report and to allow the application against the final report. The circumstances in the case of Vishnu Kumar Tiwari (supra) were very similar, and, in those circumstances, the Apex Court set aside the order of the High Court requiring the Chief Judicial Magistrate to consider the protest petition afresh in the light of the observations made by the High Court. This was without prejudice to the rights of the second respondent therein to file a complaint as permissible in law. 21. I do not see any reason to take a different view in the present case, inasmuch as the admitted position, as also reflected in the records, is that the neither the FIR nor the protest petition nor the final report filed by the investigating authority reveal any ingredients on the basis of which cognizance of offences under Section 115 (2)/324(4)/126 (2) of the BNS -2023 could have been taken. The order dated 1-7-2024, as found in the scanned copy of the Trial Court record, records the filing of the protest petition, with a prayer to initiate the instant case as a complaint case. The records do not reveal such a prayer in the protest petition. The Learned Trial Court did not consider the final report submitted by the Investigating authority at any point; at least, there is no record of such consideration. 22. In view of the above, this Court deems it appropriate to interfere in the proceedings of CR case no 03/2024 arising out of Saikhowaghat PS Case no 15/2018 and GR case no 179/2018. The same are accordingly set aside and quashed. 23. This order shall not impede any rights of the respondent no. 2 to file a complaint as permissible in law. 24. Crl Petition is disposed of.