The Calcutta High Court holds that, at the pre-cognizance stage under the BNSS, Magistrates are not required to examine the complainant and witnesses before issuing a notice to the proposed accused; affirms its prior precedent in Kaberi Dey (2025), overrides conflicting reasoning, and establishes a binding procedural protocol for subordinate courts in West Bengal.
Summary
| Category | Data |
|---|---|
| Case Name | CRR/489/2025 of BIKASH LAMA Vs THE STATE OF WEST BENGAL |
| CNR | WBCHCJ0049962025 |
| Date of Registration | 22-09-2025 |
| Decision Date | 28-10-2025 |
| Disposal Nature | ALLOWED |
| Judgment Author | HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE |
| Court | Calcutta High Court |
| Bench | Single Bench (SB), In the Circuit Bench at Jalpaiguri |
| Precedent Value | Binding on all subordinate courts in West Bengal |
| Overrules / Affirms | Affirms Kaberi Dey and others v. Sourav Bhattacharjee (2025 SCC OnLine Cal 5928) |
| Type of Law | Criminal Procedure (BNSS – Bharatiya Nagarik Suraksha Sanhita) |
| Questions of Law | Whether a Magistrate is mandated to examine the complainant and witnesses on solemn affirmation before issuing pre-cognizance notice under the BNSS, particularly when the accused resides outside jurisdiction. |
| Ratio Decidendi |
The Calcutta High Court has clarified that, at the pre-cognizance stage, the inquiry is offence-centric and not offender-centric. There is no requirement to examine the complainant or witnesses before issuing pre-cognizance notice to the proposed accused, even when the accused resides outside the court’s jurisdiction. The contrary approach adopted by the court below was contrary to binding precedent and amounted to procedural irregularity and miscarriage of justice. This protocol is essential for the uniform administration of the complaint process under BNSS within West Bengal. The High Court cautioned subordinate courts against deviation from settled law and judicial discipline. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
The Court relied on its prior coordinate bench’s reasoning in Kaberi Dey, interpreting BNSS Sections 223, 225, 226, and 227 as pari materia with corresponding CrPC provisions. It reasoned that pre-cognizance inquiry must focus on the commission of the alleged offence, rather than the identity or location of the proposed accused. Kaberi Dey’s holding that the proposed accused has a very limited scope of hearing at pre-cognizance stage was emphasized. |
| Facts as Summarised by the Court |
The lower court initially issued a pre-cognizance notice to the proposed accused after registering a complaint case. Subsequently, after reconsideration, the court reversed its decision, ruling that the complainant and witnesses must first be examined on solemn affirmation since the accused resided outside the court’s jurisdiction. The lower court relied on Mina Kumari. The petitioner argued this contravened directions from the High Court in Kaberi Dey, which had specifically laid down the correct procedure. The State supported the petitioner, arguing the law was already settled. The High Court found the lower court’s later order contrary to binding precedent and set it aside. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate criminal courts in West Bengal; Magistrates handling complaint cases under BNSS. |
| Persuasive For | Other High Courts considering similar pre-cognizance procedures under the BNSS or CrPC. |
| Distinguishes | Mina Kumari and another v. The State of Bihar and others (2006 (4) SCC 359) distinguished on procedure under BNSS/CrPC in West Bengal complaint cases. |
| Follows | Kaberi Dey and others v. Sourav Bhattacharjee (2025 SCC OnLine Cal 5928) |
What’s New / What Lawyers Should Note
- Reinforces that at the pre-cognizance stage under BNSS, Magistrates are not required to conduct solemn affirmation examination of complainant or witnesses before issuing notice to proposed accused—even if accused resides outside jurisdiction.
- Reasserts binding authority of High Court precedent (Kaberi Dey) for all subordinate courts in West Bengal, and cautions Magistrates against deviation or misinterpretation.
- Clarifies that pre-cognizance inquiry remains “offence-centric” and not “offender-centric”; proposed accused’s role is limited, with no right to detailed hearing or production of documents at this stage.
- Cites and distinguishes prior Supreme Court ruling (Mina Kumari) as not undermining this specific procedural protocol.
- Violations of this protocol by Magistrates may amount to procedural irregularity or miscarriage of justice and are subject to strict judicial deprecation.
Summary of Legal Reasoning
- The Court first recited the sequence of contradictory orders passed by the lower court—initial issuance of pre-cognizance notice, followed by reconsideration and reversal based on the accused’s location and alleged procedural requirements.
- Examined paragraph 24 and related parts of the Kaberi Dey judgment, which explicitly laid down that after receiving a complaint, the Magistrate may issue a pre-cognizance notice to the proposed accused. Only after cognizance should the complainant/witnesses be examined, not before. The hearing of proposed accused at this stage is limited.
- Stated that the pre-cognizance process is “offence-centric” and not concerned with the particular characteristics of the proposed accused, including residential location.
- Criticized the subordinate court’s interpretation—by requiring solemn affirmation before notice issuance—as lacking legal basis and being in “total disregard” of binding High Court directions.
- Distinguished the reasoning in Mina Kumari, finding it inapplicable to the issue of procedural sequence under the BNSS as interpreted in Kaberi Dey.
- Held that deviation from the High Court’s protocol amounts to procedural irregularity and potential miscarriage of justice; accordingly, the lower court order was set aside and the correct procedure reaffirmed.
Arguments by the Parties
Petitioner
- The lower court’s order contravened express binding directions of the High Court in Kaberi Dey (2025).
- The Magistrate’s initial order had correctly followed the High Court’s protocol, but the reversal misapplied Mina Kumari and misconstrued the law.
- Urged that the impugned order is perverse and should be set aside.
State
- Supported the petition, arguing the point of law was already settled by Kaberi Dey.
- Submitted that the trial court’s reversal was unjustified and lacked cogent reasons.
Factual Background
The complainant filed a case before the Magistrate against one Naresh Rathi. The Magistrate initially registered the complaint case and issued a pre-cognizance notice to the proposed accused as per Section 223 of the BNSS, granting a right of hearing. Days later, the Magistrate reversed this procedure, citing the accused’s non-residence within jurisdiction and requiring examination of the complainant and witnesses before notice issuance. The petitioner challenged the reversal as contrary to the High Court’s earlier binding directions (Kaberi Dey). The State agreed with the petitioner.
Statutory Analysis
- Section 223 of the BNSS: Governs issuance of pre-cognizance notice to proposed accused.
- Sections 225(1) and 225(1) proviso (b): Require examination on solemn affirmation of complainant and witnesses—but only after cognizance, not before.
- Sections 226 and 227 BNSS: Provide for subsequent orders after cognizance.
- The Court found these BNSS provisions to be in pari materia with relevant CrPC sections, supporting the same procedural sequence as held in High Court precedent.
Dissenting / Concurring Opinion Summary
No dissenting or concurring opinion is recorded in the judgment.
Procedural Innovations
- The judgment strongly reinforces the protocol for sequence of events in complaint cases—pre-cognizance notice can be issued without prerequisite examination of complainant/witnesses.
- Cautions subordinate judiciary against unauthorized reinterpretation or disregard of established procedural directives from High Court.
Alert Indicators
- ✔ Precedent Followed – The High Court affirms its own recent precedent (Kaberi Dey) and prohibits deviation by subordinate courts.