Introduction:

The Gauhati High Court, in Bhupendra Choudhury v. Arun Choudhury (Criminal Petition No. 1126 of 2025 and connected petition), delivered a significant ruling interpreting the procedural safeguards introduced by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), holding that a Magistrate cannot issue notice to an accused immediately upon filing of a criminal complaint without first examining the complainant and witnesses on oath, and that such notice can be issued only after the Magistrate forms a prima facie opinion, on the basis of sworn statements, that the complaint discloses substance, the Court emphasized that BNSS marks a clear departure from the earlier Code of Criminal Procedure, 1973 (CrPC) by expressly requiring a limited opportunity of hearing to the accused at the pre-cognizance stage once the Magistrate is satisfied that the complaint merits further proceedings, the petitions before the High Court arose from two private complaint cases pending before the Judicial Magistrate First Class, Morigaon, where the Magistrate issued notices to the accused immediately after filing of the complaints, without recording the sworn statements of the complainants or any witnesses, the accused challenged these notices contending that the Magistrate had acted in violation of the mandatory statutory sequence prescribed under Section 223(1) of BNSS, and that such deviation from procedure vitiated the entire process, Justice Anjan Moni Kalita examined the scheme of Sections 223 and 226 of BNSS and compared them with Section 200 of the CrPC to determine whether the Magistrate had followed the correct procedural path, and in doing so, the Court not only quashed the impugned notices but also clarified the legislative intent behind introducing an accused-centric safeguard at the threshold stage of criminal proceedings, reinforcing that procedural discipline is not a technicality but a constitutional guarantee against unnecessary criminal harassment.

Arguments of Both Sides:

On behalf of the petitioners-accused, it was argued that Section 223(1) of BNSS mandates a clear statutory sequence which begins with the examination of the complainant and witnesses on oath, followed by judicial evaluation of whether the complaint discloses sufficient substance to proceed, and only thereafter does the proviso permit issuance of notice to the accused before taking cognizance, the petitioners contended that by issuing notice straightaway, the Magistrate bypassed the legally required filtering stage and exposed the accused to unwarranted criminal process without any judicial application of mind to sworn testimony, it was further argued that the purpose of requiring examination on oath is to ensure that frivolous or malicious complaints are screened out at the threshold itself, and that premature involvement of the accused defeats the protective architecture of the statute, reliance was placed on the wording of Section 223(1) which clearly uses sequential language indicating that notice to the accused can only follow sworn examination, the petitioners also pointed out that Section 226 of BNSS empowers the Magistrate to dismiss a complaint after examination on oath if no sufficient ground exists, and therefore, issuing notice before exercising that power renders the statutory discretion under Section 226 meaningless, it was also argued that the Magistrate’s action violated principles of natural justice and fair procedure as embedded in Article 21 of the Constitution, because criminal process itself is punitive in nature and cannot be triggered mechanically, on the other hand, the respondents-complainants sought to justify the issuance of notice by arguing that the Magistrate has inherent powers to regulate proceedings and that issuing notice does not amount to taking cognizance, and therefore no prejudice was caused to the accused, it was contended that BNSS does not expressly prohibit issuance of notice before examination, and that early notice may actually serve the cause of fairness by allowing the accused to raise objections at the earliest stage, it was also argued that procedural deviations which do not cause serious prejudice should not lead to quashing of proceedings, and that the complaints deserved to be tested on merits rather than being stalled on technical grounds, the State, while largely neutral, submitted that interpretation of BNSS provisions was still evolving and that transitional confusion could not be ruled out, but accepted that statutory compliance must ultimately prevail.

Court’s Judgment:

Justice Anjan Moni Kalita, after closely examining the statutory framework, held that the Magistrate’s action was contrary to the express mandate of BNSS and that the procedural safeguards introduced by Parliament must be strictly followed, the Court observed that Section 223(1) of BNSS clearly requires the Magistrate to first examine the complainant and witnesses on oath, and only if the Magistrate finds substance in the complaint on the basis of such sworn testimony, can notice be issued to the accused before taking cognizance, the Court emphasized that issuance of notice prior to examination on oath is not contemplated by the statute and amounts to reversal of the prescribed procedural order, the judgment highlighted that BNSS introduces a significant shift from Section 200 of the CrPC, under which there was no role for the accused at the pre-cognizance stage, whereas under BNSS, the proviso to Section 223(1) expressly brings the accused into the process after judicial satisfaction regarding the substance of the complaint, the Court explained that this safeguard is intended to protect individuals from false implication and to prevent abuse of criminal law as a tool of harassment, the Court further analysed Section 226 of BNSS which empowers the Magistrate to dismiss a complaint after examining the complainant and witnesses on oath if no sufficient ground exists, and noted that this statutory power can only be exercised after sworn examination and without hearing the accused, therefore, if notice is issued prematurely, it makes the power under Section 226 redundant and transforms the Magistrate into a mere forwarding authority instead of a judicial gatekeeper, the Court categorically held that premature notice is a futile and unnecessary exercise when the complaint itself may be dismissed after examination on oath, the Court also rejected the argument that absence of prejudice can cure procedural illegality, holding that when the statute prescribes a specific method, it must be followed in that manner alone, the High Court therefore set aside the notices issued by the Magistrate in both complaint cases and remanded the matters for fresh consideration in accordance with Sections 223(1) and 226 of BNSS and other relevant provisions, directing the Magistrate to first record sworn statements and then decide whether the complaint deserves dismissal or whether notice to the accused is warranted, the judgment thus firmly establishes that BNSS is not merely a cosmetic reform but introduces substantive procedural protections that courts must actively enforce.