Shri Anish Kumar Roy And Anr vs Smti Babli Dey

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GAHC010289152025

2026:GAU-AS:16119
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./14/2026
SHRI ANISH KUMAR ROY AND ANR
S/O. LATE NEPAL CHANDRA ROY, R/O DREAMLAND APARTMENT, H.NO. P-
1, SANTI NAGAR PATH, P.O. ODALBAKRA, P.S. FATASIL AMBARI, DISTRICT
- KAMRUP , GUWAHATI, ASSAM, PIN-- 781034, PH. NO- 8638441424.
2: SMTI ANIMA ROY
W/O LATE NEPAL CHANDRA ROY
R/O DREAMLAND APARTMENT
H.NO. P-1
SANTI NAGAR PATH
P.O. ODALBAKRA
P.S. FATASIL AMBARI
DISTRICT - KAMRUP (M)
GUWAHATI
ASSAM
PIN- 78103
VERSUS
SMTI BABLI DEY
W/O ANISH KUMAR ROY, D/O LATE SUNIL DEY, PERMANENT ADDRESS-
DHIRENDRA NIWAR, 1ST FLOOR, ANANDA NAGAR, BYE LANE 2, WARD
NO. 22, P.O. ODALBAKRA, P.S. FATASIL AMBARI, DISTRICT - KAMRUP(M),
GUWAHATI, ASSAM, PIN- 781034 PRESENT ADDRESS- ASHIYANA
APARTMENT, 1ST FLOOR, SHANTI NAGAR PATH, ADAGUDAM, LOKHRA
ROAD, GUWAHATI, DIST. KAMRUP (METRO), ASSAM, PIN-781034
BEFORE
HON’BLE MRS. JUSTICE SHAMIMA JAHAN

Advocate for the petitioner(s): Mr. B. Deka

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Mr. K. K. Bhuyan

Advocate for the respondent(s): Ms. M. Borah.

Date on which judgment was reserved : 09.10.2026
Date of pronouncement of judgment : 03.11.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
JUDGMENT AND ORDER (CAV)
The petitioners by this application, have endeavored to invoke the
inherent powers of the High Court under Section 528 of the BNSS, 2023, along
with the revisional power under Section 442 of the BNSS, 2023, for setting aside
the order dated 27.08.2025, passed in C.R. Case No. 515 of 2024, by the
Judicial Magistrate First Class No. 4, Kamrup (M), Guwahati, by which
cognizance of offence under Section 115/351/85 of the BNS, 2023 was taken
against the petitioners.
FACTS:
2. The case of the petitioners is that a complaint was filed by the respondent
before the Court of Chief Judicial Magistrate, Kamrup (M), at Guwahati, under
Section 223 of the BNSS, 2023, raising various grievances against the
petitioners during her marital life with petitioner No. 1. The said allegations are
enumerated here-in-below: -

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i) The complainant/respondent stated that petitioner No. 1 is her
husband and petitioner No. 2 is her mother-in-law, and that she married
petitioner No.1, out of love affairs for about 3 years, on 05.05.2011, and
further that after marriage petitioner No. 1 took the complainant to his
rented residence at Maligaon, Kamakhya Colony at Guwahati, wherein
petitioner No. 2 also stayed with them.
ii) The complainant stated that initially, the relationship was very
cordial, but later, petitioner No. 1 started quarreling with the complainant
over small issues and that petitioner No. 1 demanded money from the
complainant and since the complainant is a housewife, she sought
financial help from her sisters and brothers, and she further stated that
on failure to fulfill the said financial needs, petitioner No. 1 used to
physically and mentally torture her. She further stated that petitioner No.
1 took an amount of Rs. 15,000/- from her elder sister as a loan for
purchasing a two-wheeler, but she stated that petitioner No. 1 never
returned the said money to her sister.
iii) The complainant thereafter stated that she brought gold jewellery of
approximate 150 grams during the marriage from her parent’s house and
that petitioner No. 1, within 3 months of the marriage sold the gold
chain, 4 numbers of gold buttons, 2 numbers of gold rings, gifted to him
by the relatives of the complainant. She also stated that petitioner No. 1
keeps on asking her to give him, her ornaments, so that he can sell and
start a business and on the fear that her ornaments would be sold, she
kept those gold ornaments at her parents’ residence for safe custody,

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and on knowing the same, petitioner No. 1 misbehaved with her and on
one night, he came in an intoxicated state, and abused her by using
filthy and slang language about her family members. The complainant
stated that petitioner No. 2 supported petitioner No. 1 and instigated him
to torture her.
iv) The complainant further stated that during the marriage, she brought
number of Stridhan articles along with other necessary articles for the
comfortable living of the couple and that she had apprehension that
petitioners may use, for their own purpose and may misappropriate the
same and may also damage.
v) The complainant thereafter stated that petitioner No. 1 used to come
late at night regularly, and under the influence of alcohol, abused her as
well as assaults her for which, it has become unbearable for her, and that
her family members told her to leave her matrimonial house and go to
her parents’ house, but then she disagreed as she was deeply in love
with petitioner No. 1. She stated that she compromised on various
matters only to save her conjugal life and tried to fulfill his demands to
whatever extent it was possible, but she stated that all her efforts were
in vain.
vi) The complainant further stated that petitioner No. 2 although knew
and saw the torture meted out to her by her son, but she gave support
to her son to all the worst deeds committed by him. She stated that
petitioner No. 1 had driven her out from his rented house several times

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and on every occasion, petitioner No. 1 used to promise the parents and
family members of the complainant that he will not continue any such
torture and brings her back to her matrimonial house. However, she
stated that for few days, petitioner No. 1 keeps his promise, but then
again, he starts torturing her both physically and mentally, for which
once in the year 2014-2015, she went to the All Women Police Station to
lodge an FIR, against petitioner No. 1, but on the request made by him,
the said FIR was not registered and a settlement was reached between
them.
vii) She also stated that in the year 2017, she came to know that
petitioner No. 1 had developed an illicit relationship with a woman and
when she confronted him with the said fact, she was beaten up by
petitioner No. 1 and that she was saved by her family members, and also
that petitioner No. 2 instigated petitioner No. 1 by saying that if
petitioner No. 1 is in love with that lady, he can marry her.
viii) Complainant further stated that there was an allegation that petitioner
No. 1 had misappropriated an amount of Rs. 1,75,000/- while working in
the private company, and that on the request made by the family
members of the complainant, the Company did not lodge any FIR against
petitioner No. 1, and that the family members of the complainant paid
the said amount to the Company and for the said act, the petitioner No.
1 had to loose his job, and that he became penniless and that the
relatives of the complainant helped them financially.

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ix) The complainant stated that petitioner No. 1 used to jump from one
private job to another, which led to severe financial crisis, for which,
petitioner No. 1 could not maintain even the monthly basic needs and
that the relatives of the complainant used to help them and fulfilled their
demands by giving TV, inverter etc.
x) She, thereafter, stated that considering the poor financial life of the
complainant and the petitioner No. 1, the brother of the complainant,
along with his partner decided to gift a penthouse in the name of the
complainant and that petitioner No. 1, threatened that the penthouse
should be given in his name, as well as the complainant, and although
the said house was given as a gift, but due to the pressure given by the
petitioner No. 1, the brother of the complainant executed a sale
agreement in the name of both the complainant and petitioner No. 1,
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which was notarized on 18 of December, 2020.
xi) The complainant stated that during the COVID period, her family
members arranged all the financial needs of the complainant as
petitioner No. 1 was jobless. She also stated that once when her sister
refused to pay money to petitioner No. 1, the petitioner No. 1
misbehaved with her sister and tortured the complainant physically. She
also stated that she suffered from COVID-19, and that petitioner No. 1,
apart from paying Rs. 15,000/-, did not pay, for her treatment, which
took place at Hyderabad and that her family members had borne all her
medical expenses. The complainant thereafter stated that when she
returned from Hyderabad on 10.04.2023, she directly went to her

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parents’ residence and that on the next day, i.e., on 11.04.2023, she
came to her matrimonial house, but she found that her husband did not
speak to her properly.
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xii) The complainant stated that on 20 of April, 2023, when her husband
came back from his office, he showed gold coins to his mother, which he
got from his office for his best services and heard him saying that he
would give the same to his nieces and that on hearing the same, she told
him that instead of giving the gold coins to his nieces, he should pay off
his debts to her family members. She then stated that on the same night,
petitioner No. 1 came in a drunken state, quarreled with her, pushed her,
to which petitioner No. 2 also did not object. She also stated that
petitioner No. 1 had pulled her hair and her hair had come out and also
that she was hit on her stomach and when she, in order to escape from
the assault, tried to enter another room, petitioner No. 2 closed that
room, thereby instigating petitioner No. 1. However, she stated that she
went out and took shelter in a neighbour’s house. The complainant then
stated that she along with her brothers and sisters, on the next day,
went to the Police Station, but due to the repeated requests, made by
petitioner No. 1 that he will not commit any such acts in future, the FIR
was not lodged. She then stated that thereafter, she stayed for a year in
her parents’ house, and although many attempts were made to reconcile
their disputes, but she did not trust petitioner No. 1.
th
xiii) The complainant further stated in the complaint petition that on 10
of May, 2024, while her sister-in-law called her up over telephone, a

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quarrel was already going on between the complainant and petitioner
No. 1, and when her sister-in-law overheard the quarrel, during which,
the complainant had to rush to the terrace of the house to save herself,
the sister-in-law of the complainant informed the other relatives, who
came to the house of the complainant and on finding the gate closed,
the brother of the complainant jumped over the wall and saved his sister,
and that other relatives went to the Police Station. It is further alleged
that the Police personnel came to the house of the complainant and
although initially, the other occupants of the building did not open the
gate, but the Police personnel on opening the same, went and rescued
the complainant. Thereafter, when both the complainant and petitioner
No. 1 went to the Police Station, the Police personnel advised them to
approach the proper forum.
xiv) The complainant, as such, stated that she had filed the instant
complaint petition before the Court of Chief Judicial Magistrate, Kamrup
(M), at Guwahati. In the said complaint, a prayer was made that the
Court may take cognizance of offence under Section 61(2)/85/115(2)/
296/351(2)(3) of the BNS, 2023.
3. The said complaint case was transferred by the Chief Judicial Magistrate,
Kamrup (M) to the Judicial Magistrate First Class, No. 4, Kamrup (M) for disposal
and the Learned Court, had fixed the case for necessary order, on 11.09.2024,
vide order dated 20.08.2024. Thereafter, the complainant was examined on oath
under Section 223 of the BNSS, 2023, by the said Court, and vide order dated
11.09.2024, issued notices to the petitioners to file their show-cause reply, fixing

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the same on 24.10.2024.
4. The complainant during her examination by the Court, under Section 223
of the BNSS, 2023, as mentioned above, had stated in the following terms: -
i) She stated that she married petitioner No. 1, on 05.05.2011, out of a love
relationship, and that she resided with him at the rented house at Maligaon,
Guwahati, along with her mother-in-law. She then stated that after 3 months
of marriage, petitioner No. 1, used to come late at night, intoxicated and used
to verbally abuse her and her family members and that petitioner No. 1 had
demanded money from her. She also stated that petitioner No. 1 had illicit
relationship with other women and that he sold his gold jewellery which was
gifted to him during marriage. She also stated that her family members used to
support them during their financial crisis and that a house was supposed to be
gifted to her, which was objected to, and on the pressure of petitioner No. 1,
her brother had executed an agreement for sale in favour of her and her
husband.
ii) She, thereafter, stated that in the year 2023, she went to Hyderabad for
her intestinal problem and all her medical expenses were borne by her family
members and that her husband had only paid an amount of Rs. 15,000/-.
iii) She, thereafter, stated that on 20.04.2023, petitioner No. 1 came home in
a drunken state and after fighting with her, pulled her hair and kicked her in
her stomach and that she sustained injuries and had to take medical help and

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that her mother-in-law did nothing to stop petitioner No. 1. She stated that to
escape from further assault, she took shelter in the house of one neighbour
and that she went to the Police Station and informed the matter.
iv) She then stated that after a year of her staying at her parents’ house,
petitioner No. 1 took her to her matrimonial house by promising that he will
never assault her, but she stated that on 10.05.2024, he fought with her again
and on the next day, she went to her parents’ house, unable to bear the
torture. She, thereafter stated that her Stridhan articles are still lying in her
matrimonial house.
By considering the said statements, along with the complaint, the Court of
JMFC, Kamrup (M), had issued notices to the petitioners.
5. On 20.02.2025, the petitioners had filed their show-cause reply as ordered
by the Court of JMFC, Kamrup (M), as stated above.
6. In the said show clause reply, the petitioners, apart from denying certain
statements made by the complainant, had stated as follows: -
i) He stated that although it is true that complainant had brought gold
jewelleries from her paternal house, but he is not aware as to the amount of
the same. He further stated that complainant had taken back all her gold
jewelleries to her parents’ house within a period of three months of her
marriage, saying that she will keep the jewelleries in her mother’s bank locker.

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ii) The petitioners had also admitted that Stridhan articles are brought to
their house, along with certain gifted articles by the brothers of the
complainant, which are lying in their house.
iii) He then stated that the complainant always pressurized him to purchase a
flat which was not possible for him due to his financial issues. He stated that it
is a fact that the younger brother of the complainant is a builder by profession,
who runs a company along with his business partner. He thereafter stated that
it was the complainant, who had given a proposal to purchase a flat from her
brother at a cheaper rate and that petitioner No. 1 agreed to the said proposal
and after holding several discussions, he agreed to purchase a flat on a total
consideration of Rs. 10,50,000/-. He further stated that the brother of the
complainant and his business partner had taken the total amount of Rs.
10,50,000/- from petitioner No. 1, on 26.12.2016, in cash, and on 29.11.2019,
upon completion of the construction of the flat, the same was handed over to
the petitioner No. 1 and the complainant, and since then, the petitioners and
complainant No. 1 used to reside therein. He also stated that an agreement of
sale was executed and was notarized.
iv) Petitioners also stated that when the wife of petitioner No. 1 was ill,
petitioner No. 1 had taken a loan of Rs. 25,000/- from his company and gave it
to her relatives for her treatment. Petitioner No. 1 further stated that when the
complainant was ill, he had taken all steps towards her treatment.
v) Regarding the allegations of physical assault upon the complainant,
petitioner No. 1 vehemently denied the same and had called upon the

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complainant to strictly prove the allegations.
vi) He also stated that the flat was purchased by petitioner No. 1 by giving
the entire consideration and it was not given for free to the complainant or to
him. He further stated that later, he came to know that the flat that was
constructed and given to them was an illegal construction as there was no
building permission and that it can be demolished any moment by the
Guwahati Municipal Development Authority or the Guwahati Municipal
Corporation. He, thereafter, stated that when he confronted the brother of the
complainant about the same, the brother of the complainant assaulted him
physically and mentally and threatened him along with his mother to vacate
the flat and when they refused to vacate the flat, the brothers of the
complainant again assaulted them and that thereafter complainant went to her
parents’ house.
vi) Petitioners further stated that he had to go out on tour for his official work
leaving his mother alone in the flat and due to the threatening given by the
relatives of the complainant, he was feeling unsafe and as such, he went to the
Police Station to lodge an FIR and that he had also made an intimation to the
Officer on Special Duty to the Hon’ble CM of Assam and the said intimation was
forwarded to the Officer-in-Charge of the concerned Police Station, to do the
needful.
7. On the basis of the said show-cause reply, and the case of the
complainant, the Court of JMFC, Kamrup (M) vide order dated 20.02.2025, had
fixed the case, for pre-cognizance hearing.

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8. Thereafter, by order dated 27.08.2025, the said Court, after hearing both
the sides, on the point of cognizance, and on examination of complainant’s
statement as well as the contents of the complaint and upon finding prima facie
grounds / sufficient grounds, against the petitioners, issued summons, i.e., took
cognizance of offence under Sections 115/351/85 of the BNS, 2023. It is this
cognizance order that the petitioners have put to challenge before this Court by
filing the present petition.
SUBMISSIONS:
9. Mr. Bibaswan Deka, learned counsel for the petitioners have placed the
following submissions:
i) The complaint arose out of a matrimonial discord which is a dispute
of civil nature between petitioner No. 1 and the respondent.
ii) The ingredients of Section 85 of the BNS, 2023, is not attracted in
the present case.
iii) The general allegations of quarrel, use of filthy language, coming
home late, do not amount to cruelty, as defined under Section 85 of the BNS,
2023.
iv) The allegation that petitioner No. 1 had sold gold jewellery that was
gifted to him is unsustainable, since he had sold the jewellery given to him and

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not of his wife.
v) It is already admitted by the complainant that she had taken her
ornaments to her parents’ house, which shows that ornaments were never in
custody or possession of petitioner No. 1.
vi) The allegations made against petitioner No. 2 are vague, omnibus
and without any specific particulars.
vii) The main cause of dispute between the complainant and petitioner
No. 1, which can be discerned is the residential flat that has been constructed
by the younger brother of the complainant and purchased by Petitioner No. 1.
He stated that the entire issues involved with regard to the flat is mentioned in
the written statement as well as in the complaint petition itself and the sale
agreement. He submits that the entire consideration was paid to the brother of
the complainant by petitioner No. 1 as stated in the sale agreement and since
the complainant is a housewife, there can be no question of payment been
made by the complainant. He further stated that had it been a gift by the
brother of the complainant to the complainant as alleged in the complaint, the
question of consideration would not have found place in the sale agreement. As
such, he states that Section 85 of BNS, is not at all attracted.
viii) The allegation of physical assault mentioned in the complaint on two
occasions, i.e., on 20.04.2023, and 10.05.2024, were with regard to the
penthouse property, which was exaggerated.

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ix) The medical documents that were annexed by the complainant were
not related to the dates, i.e., on 20.04.2023 and 10.05.2024. Rather, they were
related to the period in the year 2022. As such, he states that the ingredients of
Section 115 of BNS, are also not attracted.
x) There is no specific averment in the complaint that the complainant
was put under threat with any injury to the complainant or her reputation or
property which have caused her to do any act, which she is not legally bound to
do or to omit doing any act, and as such, he submits that the ingredients of
Section 351 of BNS, 2023, is on the face of it, is not attracted.
xi) The complainant although had stated that on a number of occasions
she had gone to lodge FIR before the Police Station, but she has not produced
any copy of the FIR, or any settlement reached between them, as claimed by
her.
xii) In fact, the petitioner No. 1, before submission of the present
complaint by the complainant, have gone before the Officer-In-Charge of the
concerned Police Station for lodging an FIR and had also submitted an
intimation to the Officer on Special Duty (OSD) to the Hon’ble CM of Assam, on
20.05.2024, about the assaults and the threatening given to him and his
mother, by the relatives of the complainant, which was sent for doing the
needful to the officer-in-charge of the concerned Police Station.
10. To substantiate his arguments, the learned counsel has placed reliance on

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the following judgments: -
A) Preeti Gupta & Anr. Vs. State of Jharkhand & Anr .;
reported in (2010) 7 SCC 667.
B) Kahkashan Kausar @ Sonam and Ors. Vs. State of Bihar &
Ors. ; reported in (2022) 6 SCC 599.
C) Charul Shukla vs. State of UP & Ors. [Special Leave
Petition (Criminal) No. 555/2024.
D) Central Bureau of Investigation vs. K Narayana Rao;
reported in (2012) 9 SCC 512 .
11. Per contra, Ms. Mira Borah, learned counsel for the sole respondent, has
placed the following submissions:-
i) Petitioner No. 1, after few months of the marriage had started quarrelling
with the respondent over small issues and had demanded money from her in a
drunken state and that the petitioner became a habitual drunker and by
coming late at night, tortured the respondent mentally and physically. She also
stated that petitioner No. 1 had sold jewelleries gifted to him by the relatives
of the complainant.
ii) Due to the actions of the petitioner No. 1, the respondent was compelled

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to keep her golden jewelleries at her parents’ house and that for the said
reason, petitioner No. 1, assaulted the respondent in presence of petitioner No.
2 and that petitioner No. 2 instead of saving the respondent, had instigated
petitioner No. 1, in his actions. She stated that respondent wanted to lodge an
FIR, but due to repeated requests by the petitioners, the said FIR was not
registered.
iii) During 2017, petitioner No. 1 developed an illicit relationship with another
woman and when he was confronted with the same, he had beaten up the
complainant.
iv) The brother of the complainant wanted to gift a penthouse to the
complainant, but petitioner No. 1 objected to the same and forced the said
brother to execute a sale agreement on behalf of both the complainant and
petitioner No. 1, which was accordingly done, but no money or consideration
was taken for the said house.
v) During the year 2023, when the respondent was suffering and was taken
to Hyderabad for treatment, petitioner No. 1 gave her an amount of Rs.
15,000/- only and the rest of the medical expenses were borne by the relatives
of the complainant, and when she came back from her treatment, petitioner
No. 1 stopped talking to her showing complete negligence.
vi) On 20.04.2023, petitioner No. 1 came back home in a drunken state and
while he showed his mother the gold coins that he received from his company

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and told her that he would gift those to his nieces, the respondent requested
petitioner No. 1 to clear off his debt towards her relatives by using the gold
coins and on hearing the same, a quarrel ensued and that petitioner No. 1
pulled her hair and kicked her on her stomach, and that the respondent to
save herself, went to her neighbour’s house. She also stated that during that
juncture, respondent wanted to file an FIR but due to the repeated requests of
petitioner No. 1, the same was not filed and that for a year, respondent stayed
in her paternal house. She further stated that however, on various promises
being made by petitioner No. 1, respondent came to her matrimonial house.
vii) She also apprised this Court about the quarrel that took place on
10.05.2024, subsequent to which, Police visited her house and advised her to
approach the appropriate forum. She also stated that the respondent had filed
an application under Section 12 of the Protection of Women from Domestic
Violence Act, 2005.
viii) The learned counsel further stated that the actions of the petitioners
would come within the definition of cruelty as defined under Section 86 of the
BNS, 2023. She further submits that the instant case is not a case for quashing
as held by the Apex Court in State of Haryana vs. Bhajan Lal; reported in
1992 Suppl. (1) SCC 335 . The learned counsel has also relied on the
judgment delivered by the Apex Court in Dr Lokesh B. H. & Others vs.
State of Karnataka , reported in 2026 SCC Online SC 1470.
ANALYSIS AND FINDINGS

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12. Before delving into the issues at hand, it is imperative upon this Court to
examine Section 190 as well as Section 200 of the CrPC, which is now Section
210 and Section 223 of the BNSS, 2023. For better appreciation of the question
as to how and when, a Magistrate can take cognizance of an offence, it is
appropriate to take note of the provisions enshrined under Section 210 of the
Code, which runs as follows: -
“ 210. Cognizance of offences by Magistrate. -
(1) Subject to the provisions of
this Chapter, any Magistrate of the first class, and any Magistrate of the second
class specially empowered in this behalf under sub-section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts, including any complaint filed by a
person authorised under any special law, which constitutes such offence;
(b) upon a police report (submitted in any mode including electronic mode)
of such facts;
(c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the
second class to take cognizance under sub-section (1) of such offences as are
within his competence to inquire into or try. ”

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13. A careful reading of Sub-Section (1) of Section 210 of BNSS clearly shows
that a Magistrate can take cognizance of an offence in three different modes; a)
upon receipt of a complaint of facts constituting such offence, b) upon receipt of
a Police report of such facts, c) upon information received from any person
other than a Police Officer or upon his own knowledge that such offence has
been committed.
14. This Court would now turn to Section 223 of the BNSS, 2023, which reads
as follows: -
“ 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 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

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(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.”
15. A careful reading of Section 223 of BNSS, 2023, makes it abundantly clear
that a Magistrate, while taking cognizance of an offence upon a complaint, shall
examine on oath, the complainant or the witnesses present, if any, and the
substance of such examination shall be reduced in writing and shall be signed
by the complainant and the witnesses and also by the Magistrate. However,
such examination can be dispensed with under the contingencies namely, if a
public servant acted or purported to act, in discharge of his official duties or if
the Magistrate makes over the case to another Magistrate. A careful analysis of

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Section 210 and Section 223 of the BNSS, 2023, clearly reveals as to what a
Magistrate shall do when he takes cognizance of an offence, on receiving a
complaint of the facts, which constitute such offence. The question which
requires adjudication is that, as to whether the learned Magistrate can take
cognizance of offence before examining the complainant or after the
examination thereof.
16. While considering these aspects, what is required to bear in mind is that
cognizance has not been defined under the Code. The word ‘cognizance’, as has
been held by the Hon’ble Apex Court, indicates the point when a Magistrate or a
Judge at the very beginning, takes judicial notice of an offence. The Apex Court
in R.R. Chari vs. State of Uttar Pradesh, reported in 1951 SCR 312, quoted
with approval the observations made by Das Gupta J., in Superintendent and
Remembrancer, Legal Affairs, West Bengal vs. Abani Kumar Banerjee ,
reported in AIR 1950 Calcutta 437 , with regard to the question as to when a
Magistrate can be said to have taken cognizance. The relevant observations are
quoted here-in-below: -
“ What is taking cognizance has not been defined in the Criminal
Procedure Code and I have no desire to attempt to define it. It seems to
me clear however that before it can be said that any magistrate has
taken cognizance of any offence under Section 190 (1) (a) Criminal
Procedure Code, he must not only have applied his mind to the contents
of the petition but must have done so for the purpose of proceeding in a
particular way as indicated in the subsequent provisions of this Chapter-
proceeding under Section 200 and thereafter sending it for inquiry and

Page No.# 23/43
report under Section 202. When the magistrate applies his mind not for
the purpose of proceeding under the subsequent Sections of this
Chapter, but for taking action of some other kind, e.g., ordering
investigation under Section 156(3), or issuing a search warrant for the
purpose of the investigation, he cannot be said to have taken cognizance
of the offence.”
17. On an examination of the aforesaid ruling, it can be deduced that on
receiving a complaint, the Magistrate has to apply his mind for the purpose of
proceeding under Section 223 of BNSS and the succeeding provisions and in
that event, it can be said that the Magistrate had taken cognizance of the
offence within the meaning of Section 210 (1) (a) of BNSS, 2023. It logically
follows from the conjoint reading of Section 210 and Section 223 of the BNSS,
2023, that when a Magistrate, on receiving a complaint, records the statement
of a complainant, he can be said to have, in the absence of anything shown to
the contrary, taken cognizance of the offence. No specific order is required to be
passed by the Magistrate, mentioning that he has taken cognizance of the
offence. The cognizance has to be inferred from the preliminary action taken by
the Magistrate.
18. What emerges from the above discussion is that when the Magistrate
initially applies his mind to the contents of the complaint and becomes
conscious and aware of the allegations made therein and decides to examine
the validity of the said complaint by examining the complainant, he can be said
to have taken cognizance. In other words, it is only upon taking of cognizance
of an offence that the Magistrate can, thereafter, while taking the said

Page No.# 24/43
cognizance, examine the complainant on oath, under Section 223 of the BNSS,
2023. It is specifically provided under the said provision that the Magistrate,
while taking cognizance of an offence, under Section 210 of the BNSS, 2023,
shall examine the complainant on oath or witnesses present, if any. In Pradyut
Kumar Das vs. Ajit Bora ; reported in 2006 (2) GLT 574, the Hon’ble Gauhati
High Court has held as follows: -
“
24. * When, however, the complaint has been made not by
a public servant in the discharge of his duties or the complaint has not been
made by a Court, the Magistrate, if satisfied that the complaint needs to be
proceeded further and decides to examine the complainant under Section 200,
he is said to have been taken cognizance. The fallout of this discussion is that
the taking of cognizance is really initial application of mind by the Magistrate for
the purpose of determining if he shall proceed in terms of the provisions of
Chapter XV of the Code or not.”
19. There however appears a difference in Section 223 of BNSS, 2023 and
Section 200 of the old Code i.e. the CrPC. In Section 200 of the CrPC, it was
provided that a Magistrate taking cognizance of an offence on complaint, shall
examine the complainant or any other witness on oath, whereas in the new
code i.e. under Section 223 of BNSS, 2023, it is provided that a Magistrate
having jurisdiction, while taking cognizance of an offence on complaint, shall
examine the complainant on oath or other witness, if present. The word that
has been newly introduced is “while” in Section 223 of BNSS, 2023. The term
“while” as per Merriam Websters dictionary, carries the meaning “during the
time”. As such it can safely be deduced that during the time of taking

Page No.# 25/43
cognizance, the Magistrate shall examine the complainant or other witness, if
any, on oath. By no stretch of reasoning, it can be said that before taking
cognizance, the complainant needs to be examined.
20. There is yet another difference between Section 200 of the CrPC and
Section 223 of the BNSS, 2023 to the effect that the first proviso appended to
Section 223 of the BNSS, 2023 was not present in the earlier code, which is
reproduced below: -
“ Provided that no cognizance of an offence shall be taken by the Magistrate
without giving the accused an opportunity of being heard:”
As such, it is made mandatory that the accused person has to be heard
before taking cognizance.
21. In the instant case, it is noticed that pursuant to the complaint filed by the
complainant, i.e., the respondent herein, the Court of JMFC No. 4, Kamrup (M),
Guwahati, had examined the complainant on oath, under Section 223 of the
BNSS, 2023, and issued notices to the petitioners to submit their show cause
reply vide order dated 11.09.2024. The said exercise of the Court in examining
the complainant on oath, under Section 223 of the BNSS, 2023, itself shows that
cognizance was already taken before the same, since the examination succeeds
cognizance as per Section 210 and Section 223 of the BNSS, 2023. It is further
seen in the said order that the Court had stipulated that on examination of the
show cause reply, the said Court would decide as to whether the Court will

Page No.# 26/43
proceed against the petitioners as per the complaint, which shows that the
Court had not taken the cognizance at that point, which is not as per law.
However, hearing the accused person i.e., the petitioners is a mandatory
requirement before taking cognizance.
22. Thereafter, it is further noticed that on consideration of the show cause
reply and the complainant’s statement as well as the contents of the complaint,
the learned Court, vide order dated 27.08.2025, had issued summons to the
petitioners and it is stipulated in the said order that prima facie grounds to
proceed against the petitioners were found. It is further noticed that by order
dated 20.02.2025, the learned Court had fixed another date for pre-cognizance
hearing after the said show cause reply was filed. There is a clear distinction
between pre-cognizance stage and post-cognizance stage. When a Magistrate,
instead of taking cognizance under Section 210 (1) of the BNSS, 2023, sends
the case for investigation by the Police under Section 156 (3) CrPC, which is
now Section 175 (3) of the BNSS, 2023, then, in that case, it will be, in the pre-
cognizance stage, but, when the Magistrate records the statement of the
complainant on oath, by proceeding under Section 223 of the BNSS, 2023, the
Magistrate can be said to have taken cognizance of the offence before or while
recording of the said statement. While Section 175 (3) of the BNSS, 2023, deals
with Magistrate’s power to direct investigation at pre-cognizance stage, Section
225 of the BNSS, 2023, empowers the Magistrate to direct investigation by
Police at post-cognizance stage. The Code had made the clear distinction
between pre-cognizance and post-cognizance stage. As such, the exercise done
by the learned Court of JMFC, is not as per law.

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23. Now, the next question that needs to be adjudicated is to how does a
Magistrate, while taking cognizance of an offence, on complaint, indicate his
satisfaction regarding the ground for proceeding against the accused person. In
taking recourse to such a process, it is consistently held by the Apex Court that
Magistrate must apply his mind on the allegation mentioned in the complaint,
regarding commission of the offence. In Darshan Singh Ram Kishan vs.
State of Maharashtra, reported in (1971) 2 SCC 654 , it was held that
process of taking cognizance does not involve any formal action, but it occurs as
soon as the Magistrate applies his mind to the allegations and, thereafter, takes
judicial notice of the offence. The observation is quoted as follows:-
“ 8. As provided by Section 190 of the Code of Criminal Procedure, a
Magistrate may take cognizance of an offence either, (a) upon receiving a
complaint, or (b) upon a police report, or (c) upon information received
from a person other than a police officer or even upon his own information
or suspicion that such an offence has been committed. As has often been
held, taking cognizance does not involve any formal action or indeed action
of any kind but occurs as soon as a Magistrate applies his mind to the
suspected commission of an offence. Cognizance, therefore, takes place at
a point when a Magistrate first takes judicial notice of an offence. This is
the position whether the Magistrate takes cognizance of an offence on a
complaint, or on a police report, or upon information of a person other
than a police officer. Therefore, when a Magistrate takes cognizance of an
offence upon a police report, prima facie he does so of the offence or
offences disclosed in such report.”

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24. In State of West Bengal vs. Md Khalid ; reported in (1995) 1 SCC
684, it has been held that while exercising the power to take cognizance, a
Magistrate has to see whether there is any basis for initiating judicial
proceeding. The relevant portion is quoted here-in-below: -
“ 43. In its broad and literal sense, it means taking notice of
an offence. This would include the intention of initiating judicial
proceedings against the offender in respect of that offence or taking steps
to see whether there is any basis for initiating judicial proceedings or for
other purposes. The word ‘cognizance’ indicates the point when a
Magistrate or a Judge first takes judicial notice of an offence. It is entirely a
different thing from initiation of proceedings; rather it is the condition
precedent to the initiation of proceedings by the Magistrate or the Judge.
Cognizance is taken of cases and not of persons.”
25. From a bare reading of the observations made by the Apex Court, it is
seen that under Section 210 of the BNSS, 2023, it is the application of judicial
mind in the complaint that constitutes cognizance. Cognizance is taken of cases
and not of persons. The Magistrate has to be satisfied whether there is
sufficient ground for proceeding or not or whether there is sufficient ground for
conviction. No doubt, no formal order or a speaking order is required to be
passed at this stage, but at the same time, the Magistrate is not to act as a
post-office in taking cognizance of each and every complaint filed before him
and issue process as a matter of course. There must be sufficient indication in
the order passed by the Magistrate, which shows his satisfaction regarding the
allegations made in the complaint that the same are prima facie true. In

Page No.# 29/43
Mehmood U.L Rahman & Ors vs. Khazir Mohammad Tunda & Ors ,
reported in (2015) 12 SCC 420 , the Hon’ble Supreme Court has held as
follows:-
“
23. The steps taken by the Magistrate under Section 190(1) (a) of
CrPC followed by Section 204 of CrPC should reflect that the Magistrate has
applied his mind to the facts and the statements and he is satisfied that
there is ground for proceeding further in the matter by asking the person
against whom the violation of law is alleged, to appear before the court.
The satisfaction on the ground for proceeding would mean that the facts
alleged in the complaint would constitute an offence, and when considered
along with the statements recorded, would, prima facie, make the accused
answerable before the court.
No doubt, no formal order or a speaking order is required to be passed
at that stage. The Code of Criminal Procedure requires speaking order to
be passed under Section 203 of CrPC when the complaint is dismissed and
that too the reasons need to be stated only briefly.
In other words, the Magistrate is not to act as a post office in taking
cognizance of each and every complaint filed before him and issue process
as a matter of course. There must be sufficient indication in the order
passed by the Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered along with the

Page No.# 30/43
statements recorded and the result of inquiry or report of investigation
under Section 202 of CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against the accused under
Section 204 of CrPC, by issuing process for appearance. Application of mind
is best demonstrated by disclosure of mind on the satisfaction.
If there is no such indication in a case where the Magistrate proceeds
under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC
is bound to invoke its inherent power in order to prevent abuse of the
power of the criminal court. To be called to appear before criminal court as
an accused is serious matter affecting one’s dignity, self respect and image
in society. Hence, the process of criminal court shall not be made a weapon
of harassment.
24. Having gone through the order passed by the Magistrate, we are
satisfied that there is no indication on the application of mind by the
learned Magistrate in taking cognizance and issuing process to the
appellants. The contention that the application of mind has to be inferred
cannot be appreciated. The further contention that without application of
mind, the process will not be issued cannot also be appreciated. Though no
formal or speaking or reasoned orders are required at the stage of Section
190/204 CrPC, there must be sufficient indication on the application of
mind by the Magistrate to the facts constituting commission of an offence
and the statements recorded under Section 200 of CrPC so as to proceed
against the offender. No doubt, the High Court is right in holding that the
veracity of the allegations is a question of evidence. Question is not about

Page No.# 31/43
veracity of the allegations; but whether the respondents are answerable at
all before the criminal court. There is no indication in that regard in the
order passed by the learned Magistrate. We, hence, set aside the order
dated 03.04.2007 passed by the Judicial Magistrate First Class, Srinagar
and the impugned order passed by the High Court. The matter is remitted
to the Magistrate for fresh consideration and further action, if required to
”
be taken in accordance with law.
25.1. In the instant case, in the order taking cognizance dated 27.08.2025,
apart from stating that the Court had considered the statement of the
complainant as well as the contents of the complaint and heard the counsels for
both sides, no other averments are made in the order showing that the
Magistrate is satisfied that the allegations made in the complaint when
considered along with the statement recorded, are prima facie true, which, in
the considered opinion of the Court is not as per law.
26. Next point to be considered by this court is as to whether the offences for
which cognizance was taken, against the petitioners, was correctly taken or not.
It is seen that the cognizance was taken for the offences under Sections
115/351/85 of the BNS, 2023. Section 85 of the BNS, 2023 is quoted here-in-
below: -
“ 85. Husband or relative of husband of a woman subjecting her to cruelty.-
Whoever, being the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with imprisonment for a term
which may extend to three years and shall also be liable to fine. ”

Page No.# 32/43

27. In order to establish an offence under Section 85 of the BNS, 2023, the
prosecution must establish: -
a) that the woman is married,
b) she has been subjected to cruelty or harassment,
c) such cruelty or harassment must have been shown to have been inflicted
either by her husband or by the relatives of her husband.

The word cruelty has been explained in Section 86 of BNS, 2023 and it
consists of two clauses; (a) and (b). It has been provided that to establish
cruelty, it must be shown that the action of the respondent is of such a nature
that is likely to drive a woman to commit suicide or to cause grave injury or
danger to life, limb or health of the woman. It is also provided that harassment
should be of such a nature so that it coerces her or any person related to her, to
meet any unlawful demand of any property or valuable security or on account of
failure to meet such demand. In the present complaint, it is stated, without any
specific particulars, as to the alleged demand of money or property made by the
petitioner No. 1. It was further stated in the complaint about an amount of Rs.
15,000/-, which was taken by petitioner No. 1, from the sister of the
complainant as a loan amount, which, however, was allegedly not returned as
stated by the complainant. It was also stated that petitioner No. 1 had sold the
ornaments given to him at the time of marriage, but as far as, her ornaments
are concerned, the same were kept in the house of the parents of the

Page No.# 33/43
complainant, which shows that it was not misappropriated by petitioners. As far
as the Stridhan articles are concerned, the same are admitted by petitioner No.
1 as lying in the matrimonial house of the complainant, for which other recourse
to law is available. Further, it is noticed that the medical documents that the
complainant had annexed in the complaint, does not show any bodily injury
being inflicted upon the complainant.

Furthermore, the complainant was admittedly ill and the medical certificates
were in connection thereof. Further, the house that was alleged to have been
gifted by the brother of the complainant, was also not stated by the
complainant that the same was demanded by the petitioners. It is also noticed
in the agreement for sale that full consideration was paid for the said house by
the petitioner No. 1. As such, the ingredients of Section 85 of the BNS, 2023,
are not attracted in the instant case.
In Belide Swagath Kumar Vs. State of Telangana, reported in 2025
INSC 1471 , the Hon’ble Apex Court had held as follows: -
“ 24. * Merely stating that the Accused-Appellant has mentally
harassed the complainant-Respondent No. 2 with respect to a demand of
dowry does not fulfil the ingredients of Section 498A of the Indian Penal
Code especially in the face of absence of any cogent material or evidence on
record to substantiate the said allegations. The term "cruelty" cannot be
established without specific instances. The tendency of invoking these
sections, without mentioning any specific details, weakens the case of
prosecution and casts serious aspersions on the viability of the version of

Page No.# 34/43
the complainant. Therefore, this Court cannot ignore the missing specifics in
an FIR which is the premise of invoking criminal machinery of the State. In
such cases involving allegations of cruelty and harassment, there would
normally be a series of offending acts, which would be required to be spelt
out by the complainant against perpetrators in specific terms to involve such
perpetrators into the criminal proceedings sought to be initiated against
them and therefore mere general allegations of harassment without pointing
out the specifics against such persons would not be sufficient to continue
criminal proceedings.”
28. As far as the allegations against the mother-in-law of the complainant i.e.
petitioner No. 2, are concerned, the same are as follows: -
(a) petitioner No. 2 supported petitioner No. 1 and instigated him to torture her.
(b) petitioner No. 2 although knew and saw the torture meted out to her by her
son, but she gave support to her son to all the worst deeds committed by him.
(c) petitioner No. 2 instigated petitioner No. 1 by saying that if petitioner No. 1
is in love with the lady, with whom it was alleged that Petitioner No. 1 had illicit
relationship, he can marry her.
(d) when petitioner No. 1 came in a drunken state and quarreled with the
complainant and pushed her, petitioner No. 2 did not object.
(e) when complainant in order to escape from assault, tried to enter another
room, petitioner No. 2 closed that room, thereby instigating petitioner No. 1.
These are the primary allegations against petitioner No. 2. The petitioner No.
2 is of 67 years of age in the year 2025 and as such it cannot be expected that

Page No.# 35/43
she will meddle into the quarrels between the complainant and petitioner No. 1
and settle disputes. Further in what way petitioner No. 2 instigated or supported
petitioner No. 1 is not specified. The two numbers of allegations that petitioner
No. 2 retorted that petitioner No. 1 can marry the woman, with whom it is
alleged that petitioner No. 1 had illicit relationship, is without any basis in as
much as the allegation itself is without any substantiating materials. Further in
the statement made by the complainant under Section 223 of the BNSS, 2023, it
was stated that petitioner No. 1 had relationship with many women.
The other allegation that petitioner No. 2 closed the room to which the
complainant wanted to enter to save herself from assault is without any detail.
The residence is a flat where there are so many rooms and the room to which
the complainant wanted to enter may belong to petitioner No. 2, who stayed
away from the alleged quarrels, she being an aged lady. Furthermore, the said
allegation is not stated by the complainant in her statement under Section 223
of the BNSS, 2023 that complainant wanted to enter a room, which petitioner
No. 2 had closed. As such, the allegations against petitioner No. 2 are omnibus
and this Court interferes with the same.
The Hon’ble Supreme Court had held time and again that without specific
allegation against the relatives of the husband, the criminal prosecution should
not be allowed to continue. In Dara Lakshmi Narayana & Ors Vs. State of
Telangana , reported in (2025) 3 SCC 735 , the Apex Court had held as
follows: -
“ 25. A mere reference to the names of family members in a criminal case
arising out of a matrimonial dispute, without specific allegations indicating
their active involvement should be nipped in the bud. It is a well-recognised
fact, borne out of judicial experience, that there is often a tendency to

Page No.# 36/43
implicate all the members of the husband's family when domestic disputes
arise out of a matrimonial discord. Such generalised and sweeping
accusations unsupported by concrete evidence or particularised allegations
cannot form the basis for criminal prosecution. Courts must exercise caution
in such cases to prevent misuse of legal provisions and the legal process and
avoid unnecessary harassment of innocent family members. In the present
case, Appellant Nos. 2 to 6, who are the members of the family of Appellant
No. 1 have been living in different cities and have not resided in the
matrimonial house of Appellant No. 1 and Respondent No. 2 herein. Hence,
they cannot be dragged into criminal prosecution and the same would be an
abuse of the process of the law in the absence of specific allegations made
against each of them.”
29. The learned Court had also taken cognizance under Section 115 of the
BNS, 2023, and the said Section read as follows:-
“ 115. Voluntarily causing hurt. - (1) Whoever does any act with the
intention of thereby causing hurt to any person, or with the knowledge that he
is likely thereby to cause hurt to any person, and does thereby cause hurt to
any person, is said "voluntarily to cause hurt”.
2) Whoever, except in the case provided for by sub-section (1) of section
122 voluntarily causes hurt, shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine which may
extend to ten thousand rupees, or with both. ”

Page No.# 37/43
30. Section 115 of the BNS, 2023, penalizes the act of causing hurt, whereby
any voluntary act or omission either causes bodily pain, disease or infirmity.
There must be some kind of hurt voluntarily inflicted. A person can be convicted
only when the prosecution is able to prove that the said acts were done
intentionally or with knowledge that such acts would cause hurt to the victim.
31. In the instant case, the complainant had stated in the complaint that on
th
20 of April, 2023, at night, petitioner No. 1, came in a drunken state, and
assaulted the victim. She also stated that under the influence of alcohol,
petitioner No. 1 pulled the hair of the complainant and a handful of hair was
plucked out from the head and that the petitioner No. 1 had also kicked on her
stomach. She also stated that in the daytime, the petitioner No. 1 had come
with some gold coins gifted to him by the Company, where he worked and over
giving the same to the nieces of the petitioner No. 1, there was a quarrel.
However, the complainant had not substantiated the statements with any
medical documents in the said complaint petition with regard to the said
incident. In the copy of the interlocutory application filed by the complainant for
vacation of the stay order, certain medical documents were annexed, which
although reflected that patient was taken to the hospital for bodily injury, but
the reports suggested no abnormality in the same. Further, the dates on which
the complainant was taken to the hospital, also does not tally with the dates
given in the complaint petition. It is also noticed that one photograph was
annexed to the said petition, showing removal of some hairs from the head, but
it is not clear as to whether the photograph belonged to the complainant or
someone else. Furthermore, although in her statement recorded under Section
223 of the BNSS, 2023, she stated that she had to take medical consultation but

Page No.# 38/43
no documents to that effect, was annexed by her. There is a further statement
by her that on that night, she escaped to the house of one of her neighbours,
but there is no statement by the said neighbour in the instant proceeding,
rather there are no other witnesses substantiating her claim, if not medical
certificate.
32. A further incident was stated by the complainant, which was alleged to
th
have taken place on 10 of May, 2024, at around 10:30 am. This Court notices
that on the said day, when the brother and sister of the complainant went to the
house of the complainant to save her, the gate was found closed and the time of
incident was 10:30 am, and it was further stated that the brother jumped over
the boundary wall and saved the complainant from the clutches of petitioner No.
1, and further, when sister of the complainant came back with Police personnel,
the occupants of the building did not open the gate and on the interference of
the Police personnel, the gate was opened and that finally, the Police personnel
advised the complainant and others to approach the appropriate forum. It is
also noticed that although the complainant stated that she was assaulted a
number of times and she desired to lodge ejahar, but none of them were
actually lodged before the Police, rather it is noticed that petitioner No. 1 had
tried to lodge an FIR before the concerned Police Station, but on refusal to
register the same, he had given a report to the Officer-On-Special-Duty to
Hon’ble CM, who had, on its turn, forwarded the same to the Officer-In-Charge
of the concerned Police Station to do the needful. Further, no medical certificate
was also annexed by the complainant with regard to the incident alleged to
th
have happened on 10 of May, 2024 or statement of any other witness
substantiating the same. Furthermore, in the statement of the complainant

Page No.# 39/43
under Section 223 of the BNSS, 2023, she had simply stated that on
10.05.2024, the petitioner No. 1 fought with her again. As such, the ingredients
under Section 115 of the BNS, 2023, are not attracted.

In Ishwar Chand Sharma and Others vs. State of Uttar Pradesh
and Another, reported in 2026 INSC 587 , the Hon’ble Apex Court has held
as under:-
“
7.8 * It is trite law that in order to establish an offence of
voluntarily causing hurt, punishable under Section 115 of BNS, prosecution
has to satisfy the key ingredients of the said Section, that is to say, the
prosecution has to produce material in order to show prima facie that bodily
pain, disease or infirmity was caused by the accused persons, in order to
qualify as voluntarily causing hurt. It is observed that no material in terms of
an injury report or any medical report has been filed so as to further
substantiate the said allegations. In this regard, the prosecution has
produced merely the statements of the prosecutrix and complainant to
substantiate their claims. Although production of an injury report is not a
sine qua non for proving an offence under Section 115 of BNS and even if
there are no visible injuries, the offence has to be established by other
evidence to show that bodily pain, disease or infirmity was caused but at the
same time, a trial cannot be allowed to proceed merely on a bald statement
of allegation that the prosecutrix was hurt when no other detail or specific
acts have been mentioned or alleged. A mere bald allegation without any
supporting detail or materials cannot straight away lead to setting criminal
law in motion.”

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33. The learned Court of JMFC had also taken cognizance of offence under
Section 351 of the BNS, 2023, which is quoted here-in-below: -
“ 351. Criminal intimidation. - (1) Whoever threatens another by any
means, with any injury to his person, reputation or property, or to the person or
reputation of any one in whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do any act which he is not
legally bound to do, or to omit to do any act which that person is legally entitled
to do, as the means of avoiding the execution of such threat, commits criminal
intimidation.
Explanation. - A threat to injure the reputation of any deceased person in
whom the person threatened is interested, is within this section.
Illustration.
A, for the purpose of inducing B to resist from prosecuting a civil suit,
threatens to burn B's house. A is guilty of criminal intimidation.
(2) Whoever commits the offence of criminal intimidation shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both.
(3) Whoever commits the offence of criminal intimidation by threatening
to cause death or grievous hurt, or to cause the destruction of any property by

Page No.# 41/43
fire, or to cause an offence punishable with death or imprisonment for life, or
with imprisonment for a term which may extend to seven years, or to impute
unchastity to a woman, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with fine, or with
both.
(4) Whoever commits the offence of criminal intimidation by an
anonymous communication, or having taken precaution to conceal the name or
abode of the person from whom the threat comes, shall be punished with
imprisonment of either description for a term which may extend to two years, in
addition to the punishment provided for the offence under sub-section (1).”
34. A simple reading of the definition of criminal intimidation, indicates that
there must be an act of threatening to another person, of causing an injury to
the person, reputation or property of the person threatened or to the person, in
whom, the threatened person is interested and the threat must be, with the
intent to cause alarm to the person threatened or it must be to do any act,
which he is not legally bound to do, or omit to do such an act, which he is
legally entitled to do. In the instant case, there is no specific allegation that the
complainant has been threatened or she was put to alarm of any bodily injury to
do certain act or to omit to do certain act. The allegation is that the petitioner
No. 1 had abused the complainant and assaulted her. Mere expression of any
words without any intention to cause alarm, would not be sufficient to bring in
the application of this Section. Materials have to be placed on record to show
that the intention is to cause alarm to the complainant. In Ishwar Chand
Sharma and Others vs. State of Uttar Pradesh and Another (supra) , the

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Hon’ble Apex Court has held as under:-
“ 7.9 The complainant has further failed to produce any material in support
of the allegations of abuses meted out by appellant Nos.2 and 3 to the
prosecutrix. It has been merely stated that she was abused and threatened
that she may be killed. It has been time and again held by this Court that
in order to establish an offence of criminal intimidation punishable under
Section 351 of BNS merely stating that the victim was abused is not
sufficient. For the essential ingredients to satisfy invocation of the said
offence, the prosecution has to produce material to the effect that the
accused specifically threatened the victim and that such threat consisted of
some specific injury to his person, reputation or property or to the person,
reputation or property of someone in whom he was interested. It further
needs to be satisfied that the said specific act or omission was done with
an intent to cause alarm to that person or to cause that person to do any
act which he was not legally bound to do or to omit to do any act which he
or she was legally entitled to do. A plain reading of the complaint reveals
that the same did not specify the abusive words used or anything specific
that was said to the prosecutrix. Rather, it has been merely stated that
appellant Nos.2 and 3 abused and threatened the prosecutrix. No material
has been produced which specify what the threat actually was, how the
said threat was carried out and what was actually stated in terms of the
threat. Vague and general allegations are not sufficient to sustain criminal
charges formed under the said provision as there have to be cogent facts,
discernible from the general accusation so as to show that the said threat
was meted out to the prosecutrix, without which, this Court cannot allow

Page No.# 43/43
continuance of criminal prosecution against the appellants herein.”
As such, without any specific averment in the complaint about the
threatening given to the complainant as defined under Section 351 of the BNS,
2023, the said Section 351 of the BNS, 2023, is also not attracted.
CONCLUSION:
35. In view of the findings narrated above, this Court has no alternative, but
to interfere with the cognizance order taken by the learned Court of JMFC No. 4,
Kamrup (M), at Guwahati. Accordingly, the order dated 27.08.2025, passed by
the Court of JMFC No. 4, in CR Case No. 515 of 2024, is set aside and quashed.
Consequently, interim order(s) passed earlier, if any, stands vacated.
36. Petition is allowed and disposed of.
JUDGE
Comparing Assistant