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Allahabad High Court

SHAMSHAD AND ANOTHERversusSTATE OF U.P. AND ANOTHER

Decided

Holding

The High Court set aside the summoning order for non‑compliance with Section 223 of the B.N.S.S. and directed a fresh order after a hearing.

Summary

The appellants, Shamshad and another, appealed against a summoning order dated 21 January 2026 issued by the Special Judge under the SC/ST Act in Complaint Case No. 29 of 2025 (Ramchandra vs. Shamshad). The order was based on sections 352 and 351(2) of the Bharatiya Nagarik Suraksha Sanhita (B.N.S.) and section 3(1)(1) of the SC/ST Act. The appellants contended that the trial court had taken cognizance of the offence without first granting them a hearing, contrary to Section 223 of the B.N.S.S. The High Court found that the trial court indeed failed to comply with the mandatory hearing requirement. Consequently, the impugned summoning order was set aside and the trial court was directed to re‑issue the order after affording the accused an opportunity to be heard. The appeal was allowed.

Issues considered

  • Whether the trial court violated Section 223 of the Bharatiya Nagarik Suraksha Sanhita by taking cognizance without hearing the accused.

Legislation cited

Subjects

  • criminal procedure
  • right to hearing
  • Section 223
  • SC/ST Act
  • summoning order
  • appeal
  • cognizance

Judgment

                                             HIGH COURT OF JUDICATURE AT ALLAHABAD

                                                     CRIMINAL APPEAL No. - 7148 of 2026

                                    Shamshad And Another
                                                                                                   .....Appellant(s)
                                                                        Versus
                                    State of U.P. and Another
                                                                                                 .....Respondent(s)

                                    Counsel for Appellant(s)         : Anamika Singh, Jitendra Pal Singh,
                                                                       Pradeep Kumar Singh
                                    Counsel for Respondent(s)        : Azhar Ahmad, G.A.

                                    Court No. - 90
                                                          HON'BLE ABDUL SHAHID, J.

                                    1. Case called out in the revised list. None is present for the opposite party
                                    no. 2 despite sufficient notice.

                                    2. Heard learned counsel for the appellant.

                                    3. The criminal appeal has been filed against the impugned summoning
                                    order dated 21.01.2026 passed by the learned Special Judge SC/ST
                                    Act/Additional District and Sessions Judge, Court no. 2, Pilibhit, in
                                    Complaint Case No. 29 of 2025 (Ramchandra vs. Shamshad and another),
                                    under sections 352, 351(2) B.N.S., and section 3(1)(1) of SC/ST Act, Police
                                    Station Barkhera, District Pilibhit.

                                    4. Learned counsel for the appellant has raised a legal question that the
                                    learned trial court, prior to passing the impugned order dated 21.01.2026, did
                                    not provide an opportunity of hearing to the prospective accused under the
                                    provisions of Section 223 of the Bharatiya Nagarik Suraksha Sanhita
                                    (B.N.S.S.), which mandates that no cognizance of an offence shall be taken
                                    by the Magistrate without giving the accused an opportunity of being heard.
                                    This legal position has not been considered by the learned trial court.

                                    5. In view of this legal non-compliance, the impugned order dated
                                    21.01.2026 is hereby set aside.

                                    6. The learned trial court is directed to pass a fresh order after following the
                                    provisions of Section 223 of the B.N.S.S. in accordance with law.

                                    7. With these observations and directions, the criminal appeal is allowed.
                                    September 23, 2026
                                    K.K. Maurya
                                                                                                (Abdul Shahid,J.)




Digitally signed by :-
KAMLESH KUMAR MAURYA
High Court of Judicature at Allahabad


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