Allahabad High Court
SMT. INDRANI DEVI AND 5 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- DEEPAK VERMA
Holding
The summoning order dated 30.04.2026 is set aside and the magistrate must pass a fresh order in accordance with the proviso to Section 223 B.N.S.S.
Summary
The applicants filed an application under Section 528 of the B.N.S.S. seeking to quash the entire proceeding of a complaint and a summoning order dated 30.04.2026. They contended that the complaint originated from an application under Section 173(4) B.N.S.S., which the magistrate incorrectly treated as a complaint and failed to issue the statutory notice required under Section 223(1) B.N.S.S. The State’s Additional Government Advocate did not dispute these factual allegations. The High Court examined the order sheet and found that no notice had been served, rendering the summoning order invalid. Consequently, the court set aside the summoning order and disposed of the application, directing the magistrate to pass a fresh order in compliance with the proviso to Section 223 within eight weeks.
Issues considered
- Whether the magistrate erred in treating an application under Section 173(4) B.N.S.S. as a complaint.
- Whether the failure to serve notice under Section 223(1) B.N.S.S. invalidates the summoning order.
- Whether the entire proceeding of the complaint can be quashed under Section 528 B.N.S.S.
Legislation cited
Subjects
- quash proceeding
- notice requirement
- Section 223
- Section 173
- magistrate order
- summoning order
- procedural lapse
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 33890 of 2026
Smt. Indrani Devi And 5 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajay Kumar Dwivedi, Krishna Dutt
Tiwari
Counsel for Opposite Party(s) : G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Supplementary affidavit filed by the applicants, is taken on record.
2. Heard learned counsel for the applicants; learned A.G.A. for the State
and perused the record.
3. This application under Section 528 B.N.S.S. has been filed by the
applicants to quash the entire proceeding of Complaint as well as
summoning order dated 30.04.2026 Case No. 1164 of 2025 (Smt. Saroj
Vs Aman and others), Under Section-74, 115(2), 352, 351(1) BNS 2023,
Police Station Jaqspura, District Banda, pending in the Court of Special
Judge (POCSO Act)/ Additional Session Judge Banda, District- Banda.
4. By means of supplementary affidavit, learned counsel for the applicants
has filed complete order sheet of the proceedings of the present case.
5. Learned counsel for the applicants submits that the present complaint
was lodged through an application under Section 173(4) BNSS and the
learned Magistrate, by order dated 26.11.2025, treated the application
under Section 173(4) BNSS as a complaint case. He further submits that
the learned Magistrate has not issued any notice in compliance of
provisions under Section 223(1) BNSS. The order-sheet and summoning
order prima facie disclose that no notice was ever served in compliance of
provisions under Section 223(1) BNSS.
6. Per contra, learned AGA has not disputed the facts argued by learned
NA528 No. 33890 of 2026
2
counsel for the applicants.
7. The order dated 30.04.2026, by which the applicants have been
summoned by the learned Magistrate is, hereby, set aside. The present
application is disposed of with the direction that learned Magistrate shall
pass a fresh order in accordance with law under Proviso 1 of Section 223
B.N.S.S. within a period of eight weeks from the date of production of
certified copy of this order.
(Deepak Verma,J.)
September 8, 2026
Nisha
Digitally signed by :-
nisha kumari
High Court of Judicature at Allahabad
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