VIKASversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 16192 of 2026

Vikas
                                                           .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)             :   Agnivesh, Jadu Nandan Yadav
Counsel for Opposite Party(s)        :   G.A.

Court No. - 82
                 HON'BLE DR. GAUTAM CHOWDHARY, J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State as
well as learned counsel for the informant and perused the material
brought on record.

2. The present application under Section 528 BNSS has been filed for
quashing the summoning order dated 25.09.2025 passed by learned
Additional Civil Judge (J.D.)/ Judicial Magistrate, Room No. 20, District
Deoria in Complaint Case No.10 of 2024 under Sections 115(2), 352 of
B.N.S., Police Station Gauri Bazar, District Deoria.

3. Learned counsel for the applicants has contended that the opposite
party no.2 filed a complaint for summoning of the accused-applicant
under the charged Sections. He further submits that the learned trial Court
after recording the statements under Section 223 and 225 of B.N.S.S. has
straight away summoned the accused-applicant which is not tenable in the
eyes of law. Learned counsel further contended that it is obligatory on the
part of the learned trial Court that after recording of the statement of the
complainant as well as witnesses, notice be issued to the applicant
annexing therewith the copy of the complaint as well as statement of
complainant and other witnesses taken on oath but in the present case,
after recording of the statements, no notice has been issued to the
applicant which is in violation of the provisions of proviso (1) of Section
223 of B.N.S.S. It is thus contended that the impugned order is bad in the
eyes of law. Relying on the decision of Karnataka High Court passed in
Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri
Shivananda S. Patil).Thus, learned counsel for the applicant submits that
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impugned order is illegal and unjust and is liable to be set aside.

4. At this stage, learned A.G.A. for the State could not dispute the
submissions advanced by learned counsel for the applicant.

5. Having heard the rival submission of the learned counsel for the
parties. It is necessary to peruse 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.

6. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that
a Magistrate while taking cognizance of an offence, on a complaint, shall
examine upon oath, the complainant and the witnesses present, if any, and
reduce it into writing. The Proviso further mandates that no cognizance of
an offence shall be taken by the Magistrate without giving an opportunity
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                                    to the accused of being heard. Section 227 of the B.N.S.S. deals with the
                                    issuance of process which is akin to Section 204 of the Cr.P.C.

                                    7. Thus, in view of above, it is necessary to hear the accused before
                                    cognizance of the offence is taken by the Magistrate. Hence, the
                                    impugned order is illegal to the extent that Magistrate took cognizance of
                                    the offences alleged in the complaint filed by the private opposite party
                                    without giving the accused-applicant an opportunity of being heard.

                                    8. In view of above facts and discussions, present application under
                                    Section 528 BNSS is, accordingly, allowed. The impugned order dated
                                    25.09.2025 is hereby set aside.

                                    9. The matter is remitted to the concerned trial Court to pass afresh order,
                                    strictly in accordance with law, keeping in mind the observations made
                                    above.



                                                                                 (Dr. Gautam Chowdhary,J.)
                                    May 6, 2026
                                    S.Ali/Sahani




Digitally signed by :-
SHAUKAT ALI
High Court of Judicature at Allahabad