Allahabad High Court
ARVIND YADAV AND 6 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- DEEPAK VERMA
Holding
The summons order is set aside as it was issued without the mandatory notice, constituting an abuse of process.
Summary
The applicants filed an application under Section 528 of the Bhartiya Nyay Sanhita seeking to quash the complaint case No. 944 of 2025 (Sohan Yadav v. Arvind Yadav & Others) and the summons issued on 24 July 2026. They contended that the Judicial Magistrate had taken cognizance of an application under Section 173(4) BNSS and issued summons without first issuing a notice as mandated by Section 223(1) BNSS, thereby violating procedural law. The State’s Additional Government Advocate did not dispute these factual allegations. The Court held that the failure to issue the required notice rendered the summons an abuse of process. Consequently, the summons order was set aside and the application was disposed of, with a direction that the magistrate must pass a fresh order after hearing both parties within two months, in compliance with the proviso to Section 223 BNSS.
Issues considered
- Whether a Judicial Magistrate is required to issue a notice under Section 223(1) of the BNSS before taking cognizance of an application under Section 173(4) BNSS.
- Whether issuance of summons without such notice constitutes an abuse of process justifying quashal under Section 528 BNSS.
Legislation cited
- Bhartiya Nyay Sanhita — s. 115(2), 173(4), 223(1), 351(3), 352, 528
Subjects
- quash of proceedings
- abuse of process
- notice requirement
- cognizance
- summons
- criminal procedure
- BNSS
- Section 528
- Section 223
- Section 173
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 35670 of 2026
Arvind Yadav And 6 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Devbratt Yadav, Ram Pratap Yadav
Counsel for Opposite Party(s) : G.A.
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Supplementary affidavit, filed today, is taken on record.
2. Heard learned counsel for the applicants and learned A.G.A. for the
State and perused the record.
3. The present 528 BNSS application has been filed to quash the entire
proceeding of the Complaint Case being Complaint Case No. 944 of 2025
(Sohan Yadav v. Arvind Yadav and Others) P.S Jahanaganj, District
Azamgarh Computer Case No. UPAZ040394812026 including the
Summoning order dated 24.07.2026 under section 115(2), 351(3) and 352
of Bhartiya Nyay Sanhita, Passed by Judicial Magistrate, Court No. 20,
Azamgarh.
4. Learned counsel for the applicants submits that opposite party no.2
filed application U/s 173(4) BNSS and the same was treated as complaint
vide order dated 16.05.2025. The provision U/s 223(1) BNSS provides
that learned Magistrate has to issue notice to accused before taking
cognizance. From the record, it is apparent that learned Magistrate, on the
application of opposite party no.2 filed U/s 173(4) BNSS, has taken
cognizance vide order dated 16.05.2025. From the record and order sheet,
there is no evidence that before taking cognizance, i.e., 16.05.2025, court
had issued any notice in pursuance of provision provided U/s 223(1)
BNSS, therefore, learned Magistrate order for issuance of summons
against the applicants are abuse of process of court. Summoning by
learned Magistrate is without application of judicial mind and against the
NA528 No. 35670 of 2026
2
provision provided under the BNSS Act.
5. Argument raised by the counsel for applicants having legal force and
prima facie discloses that the applicants have not been given opportunity
before taking cognizance and issuance of process.
6. Per contra, learned AGA has not disputed the facts argued by learned
counsel for the applicants.
7. The summoning order dated 24.07.2026, passed by learned Magistrate,
is hereby set aside. The present application is disposed of with direction
that learned Magistrate shall pass a fresh order, after hearing both the
parties, in accordance with law under Proviso 1 of Section 223 B.N.S.S.
within two months from the date of production of certified copy of this
order.
(Deepak Verma,J.)
September 30, 2026
Nitin Verma
Digitally signed by :-
NITIN KUMAR VERMA
High Court of Judicature at Allahabad
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