Sri Dipankar Majumder and Anr vs The State of Tripura and Anr

TRHC010004852026
2026:THC:1236
HIGH COURT OF TRIPURA
AGARTALA

Crl.P.No.33 of 2026

1.Sri Dipankar Majumder, Age-51
S/o- Late Sunil Chandra Majumder,
Resident of Chandrapur, A.A. Road,
Opposite Rajarshi Motors,
Agartala-799007, Tripura West.

2.Smt. Maitri Majumder, Age-42
S/o- Dipankar Majumder,
Resident of Chandrapur, A.A. Road,
Opposite Rajarshi Motors,
Agartala- 799007, Tripura West.


……The Petitioner(s)

Versus


1. The State of Tripura,

2. Kotak Mahindra Bank Ltd.
Represented by its authorized Person
Having its Branch address at 22, Camac Street
th
5 Floor, Kolkata-700016.

……The Respondent(s)


For Petitioner(s) : Mr. Kushal Deb, Adv.


For Respondent(s) : Mr. Soumyadeep Saha, Addl. P.P.


Date of Hearing : 01.09.2026

Date of delivery of
Judgment and Order : 07.09.2026

Whether fit for
Reporting : YES


HON’BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This petition under Section 528 of BNSS is filed for
quashing of the order dated 12.07.2024 passed by Ld CJM,
Agartala, West Tripura in CR 209 of 2024 on the ground of non-
compliance of Section 223 of BNSS.

Page 2 of 10

02. Heard Learned Counsel, Mr. K. Deb appearing on
behalf of the petitioner and also heard Learned Addl. P.P.
appearing on behalf of the State-respondent. Although one
Learned Counsel on 10.07.2026 appeared on behalf of the
respondent No.2. But at the time of hearing, none appeared on
behalf of respondent No.2.
03. Taking part in the hearing, Learned Counsel for the
petitioners submitted that the complainant, Kotak Mahindra
Bank Limited filed one complaint-petition before the Court of
Learned CJM, West Tripura, Agartala on 12.07.2024 against the
present petitioners and others under Sections
61(2)/314/316/318/320/321/323/324 of BNS. But Learned CJM
on that day without affording any opportunity to the
respondent-accused persons directly took cognizance of offence
against the present petitioners and others which was
impermissible in view of the provision provided under Section
223 of BNSS.
It was further submitted that on the same day
Learned Trial Court also transferred the case to the Court of
st
Learned J.M. 1 Class, Court No.3, Agartala, West Tripura. So,
according to Learned Counsel for the petitioners the order
passed by Learned CJM suffers from illegality and the same
needs to be interfered with. In support of his contention,
Learned Counsel relied upon one citation of the Hon’ble
Supreme Court of India in Kushal Kumar Agarwal vs. Directorate

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of Enforcement dated 09.05.2025 reported in (2025) Supreme
(SC) 919 and submitted that in view of the judgment of the
Hon’ble Supreme Court the order needs to be interfered with
and set aside.
04. On the other hand, Learned Addl. P.P. appearing on
behalf of the State-respondent submitted that there was no
irregularity and illegality in the said order passed by Learned
CJM as because Learned CJM did not record the statement of
the complainant and witnesses rather transferred the case to
another Court for disposal. So, at this stage, there is no scope
to interfere with the said order passed by Learned CJM and
urged for dismissal of this petition. In support of his contention,
Learned Counsel also relied upon two citations of the Hon’ble
Supreme Court in Raghubans Dubey vs. State of Bihar reported
in (1967) SC OnLine SC 3 and also relied upon another citation
of the Hon’ble Supreme Court in State of West Bengal vs.
Manmal Bhutoria and Others reported in (1977) 3 SCC 440 and
submitted that in view of the judgments of the Hon’ble Apex
Court there was no illegality in the order passed by Learned
CJM.
Considered.
05. The Criminal Procedure Code has been repealed by
the Bharatiya Nagarik Suraksha Sanhita (hereinafter, referred to
st
as BNSS) which came into force on 1 July, 2024. The present

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complaint-petition was filed before the Court of Learned CJM on
12.07.2024 i.e. after the introduction of the new enactment on
01.07.2024. Now, before answering to the relevant questions
regarding cognizance of offence let us narrate herein below the
erstwhile provision of Cr.P.C. or relevant provision of the BNSS
to give a clear idea about the subject matters in issue. Chapter-
XV of Cr.P.C. deals with ‘complaints to Magistrate’. Now for the
sake of convenience, let us reproduce herein below the relevant
provision of Section 200 of Cr.P.C. which provides as under:
200. A Magistrate 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, 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 192;

Provided further that if the Magistrate makes
over the case to another Magistrate under
section 192 after examining the complainant
and the witnesses, the latter Magistrate need
not re-examine them.
From the aforesaid provision, it appears that after
receipt of the complaint the Magistrate would take cognizance of
offence on complaint directly and shall examine upon oath the
complainant and the witnesses’ present and shall record their
statements and this examination part has been excluded if the
complaint was in writing, if any public servant in discharging of
his official duties files any complaint or a Court has makes over

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the complaint for enquiry on trial to another Magistrate under
Section 192. But from the aforesaid provision, nowhere we find
that there is/was any scope for hearing the accused before
taking cognizance of offence. As already stated Cr.P.C. was
repealed by the new enactment of BNSS which came into force
on 01.07.2024. Now in Chapter-XVI of BNSS deals with the
‘Complaints to Magistrate’. For the sake of convenience, let us
reproduce herein below the relevant provision of Section 223 of
BNSS which reads as under:
“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

(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

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(b) a report containing facts and circumstances
of the incident from the officer superior to such
public servant is received.”
From the aforesaid provision it appears that in the
said provision the following words have been inserted by the
legislature before taking cognizance of offence:
“Provided that no cognizance of an offence shall be
taken by the Magistrate without giving the accused an
opportunity of being heard”, meaning thereby, it shall be
mandatory for the Magistrate before taking cognizance of
offence on any complaint to hear the accused and thereafter
shall either proceed to take cognizance of offence upon
examination of the complainant and his witnesses, if any
present. Further, Section 2(h) of the BNSS defines the term
‘complaint’ which means and includes:
“(h) “complaint” means any allegation made
orally or in writing to a Magistrate, with a view
to his taking action under this Sanhita, 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 a complaint; and the police
officer by whom such report is made shall be
deemed to be the complaint;”
From the above definition of complaint further it
appears that complaint may be made orally or in writing also.
So, the Magistrate concerned whens the complaint is made
orally or in writing at the time of taking cognizance of offence on
complaint shall examine upon oath the complainant and the
witnesses present, if any. But as per the new enactment the

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Magistrate before taking cognizance of offence shall give an
opportunity to the accused concerned of being heard. This
proviso part has been newly introduced in the new enactment of
BNSS which came into being w.e.f. 01.07.2024.
Here in this case, it appears that without affording
any opportunity to the accused being heard, there was no scope
on the part of the Magistrate directly to cognizance of offence.
Hon’ble the Supreme Court in Kushal Kumar Agarwal vs.
Directorate of Enforcement reported in (2025) Supreme (SC)
919 in para Nos.4, 6, 7 and 10 observed as under:
4. Section 223 of the BNSS correspondence to
Section 200 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘the CPC’).
However, a proviso similar to the proviso to
sub-section (1) of Section 223 does not find
place in Section 200 of the CrPC.
“6. 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.
7. 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.
10. The impugned order dated 20th November,
2024, is set aside only on the ground of non-
compliance with the proviso to sub-section (1)
of Section 223 of the BNSS.”
From the aforesaid observation of the Hon’ble
Supreme Court it appears that without affording any opportunity
there was no scope to take cognizance of offence by the
Magistrate without affording any opportunity of being heard to
the accused.

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06. Learned Addl. P.P. as already stated at the time of
hearing relied upon one citation of the Hon’ble Supreme Court of
India reported in (1967) SCC OnLine SC 3 in Raghubans
Dubey vs. State of Bihar wherein in para No.9 Hon’ble the
Apex Court observed as under:
“9. Mr Sachthey, the learned counsel for the
respondent brought to our notice some
decisions which have taken the same view The
Calcutta High Court in Saifar v. State of West
Bengal (AIR 1962 Cal 133) following the Full
Bench decision of the Judicial Commissioners,
Sind, in Mehrab v. Emperor (AIR 1924 Sind 71)
held that when a Magistrate takes cognizance
under Section 190(1)(b) on a police report he
takes cognizance of the offence and not merely
of the particular persons named in the charge-
sheet, and therefore, the Magistrate is entitled
to summon additional accused against whom
he considers that there was good evidence,
after perusal of the statements recorded by the
police under Section 161 and the other
documents referred to in Section 173 even
without examination of witnesses in court.”

Further, in another case State of West Bengal vs.
Manmal Bhutoria & Ors. dated 14.07.1972 reported in
(1977) 3 SCC 440 wherein in para No.17 Hon’ble the Supreme
Court also observed under:
“17. It is true that Section 21 IPC enumerates
various classes of public servants who are or
who happen to be in office. That is, however,
not the true test in determining the present
controversy. The crucial date for the purpose of
attracting the provisions of the Act as well as
those of the Bengal Act is whether the offence
has been committed by a public servant within
the definition of Section 21. The date for
determining the offence is the date of the
commission of the offence when the person
arraigned must be a public servant. Section 6
of the Act provides that no Court shall take
cognizance of an offence specified in that
section alleged to have been committed by a
public servant except with the previous
sanction. The section itself makes a clear
distinction between cognizance of an offence

Page 9 of 10

and alleged commission of an offence. Sanction
refers to the date when after submission of a
report or a complaint the Court takes
cognizance of the offence. That date is
necessarily subsequent to the date of
commission of the offence and sometimes far
remote from that date. Retirement, resignation,
dismissal or removal of a public servant would
not wipe out the offence which he had
committed while in service. Under Section 6(1)
of the Act, as in the case of Section 190(1)
CrPC the Court takes cognizance of an offence
and not an offender (see Raghubans Dubey v.
State of Bihar [AIR 1967 SC 1967 : (1967) 2
SCR 423, 428 : 1967 Cri LJ 1081] ). The crucial
date, therefore, for taking cognizance in this
case is the date when the case was received by
the Special Court on being allotted by the State
Government under Section 4(2) of the Bengal
Act.”
07. I have gone through the citations referred by
Learned Counsel of the parties. As already stated the BNSS
came into force w.e.f. 01.07.2024, so, on and after 01.07.2024
whenever any complaint is filed before any Magistrate in that
case, the Magistrate shall before taking cognizance of offence
shall hear the accused and after hearing both the sides affording
opportunity to the accused, only thereafter the Magistrate shall
proceed to take cognizance of offence on examination of the
complainant and his witnesses present, if any and since by the
aforesaid provision of Section 223 of BNSS, it has been
obligated upon the Magistrates to follow the said process before
taking cognizance of offence. So, an order passed on any
complaint after 01.07.2024 directly taking cognizance of any
offence without hearing the accused would amount to bad in law
and also abuse of the process of the Court and without
jurisdiction.

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The citations as referred by the Learned Addl. P.P. do
not match with the factual position of the present petition. As
such those cannot be applied in this case.
08. In the result, this present petition filed by the
petitioners is hereby allowed. The order dated 12.07.2024
passed by Learned CJM, West Tripura, Agartala is hereby set
aside. The matter is remanded back to the Learned CJM, West
Tripura, Agartala to rehear the matter afresh and also to
proceed with the matter in accordance with the provision of
Section 223 of BNSS on the complaint filed by the respondent
No.2.
With this observation, this present petition stands
disposed of.
Both the parties are asked to appear before the Court
of Learned CJM, West Tripura, Agartala on 22.09.2026.
Send down the record to the Learned Trial Court
along with the copy of this judgment/order.
Circulate copy of this order to all the Criminal Courts
across the State.
Pending application(s), if any, also stands disposed
of.
JUDGE
Digitally signed by PURNITA
DEB
Date: 2026.09.09 14:54:19
+05'30'

PURNITA DEB
Purnita