VANDANA GUPTA @ KM BANDANAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 37527 of 2026

Vandana Gupta @ Km Bandana
                                                            .....Applicant(s)
                                  Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                            :    Rajat Singh
Counsel for Opposite Party(s)                       :    G.A.

Court No. - 79
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for the applicant and learned AGA for the State.

2. The present application has been preferred for seeking quashing of
charge-sheet dated 25.11.2024 and cognizance/summoning order dated
22.05.2026 passed by learned Chief Judicial Magistrate, Mau along with
entire proceedings of Criminal Case No.16530 of 2026 (State vs. Vandana
Gupta) arising out of Case Crime No.439 of 2024, under Sections 115(2),
351(2), 352 BNS, P.S. Saray Lakhansi, District- Mau.

3. Learned counsel for the applicant submits while taking cognizance of
offence vide order dated 22.05.2026 although case has been registered in
pursuance to sections 115(2), 351(2), 352 BNS, under section 2(1)h BNSS
as complaint case, but at the same time learned court of Chief Judicial
Magistrate, Mau has not complied mandatory provisions of section 223
BNSS, through which notice is mandatory to be issued to the applicant being
implicated in Case Crime No.439 of 2024, which has been registered as
complaint case.

4. For ready reference section 223 BNSS is reproduced herein below :-

     "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
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                                   2


      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

      (b) a report containing facts and circumstances of the incident
      from the officer superior to such public servant is received."

5. Although learned AGA vehemently opposed the prayer sought through
instant application and rebutted the stand taken up by learned counsel for the
applicant, but he did not dispute the mandatory provisions of section 223
BNS, which ought to be complied by every court of law, which is taking
cognizance of offence in pursuance to report submitted by concerned
Investigating Officer/police authority, where the case has been registered as
complaint case under section 2(1)h BNSS.

6. Since legal issue has been raised by learned counsel for the applicant and as such
process for issuing notices upon opposite party no.2 is hereby dispensed with.
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                                    7. After hearing rival submissions extended by learned counsel for the
                                    parties, it is crystal clear that the mandatory provisions of section 223 BNSS
                                    is integral part of the procedure which has been adhered by every court of
                                    law, who is competent to take cognizance when the matter has been
                                    registered as complaint case in pursuance to section 2(1)h BNSS and as such
                                    order dated 22.05.2026 is liable to be set-aside.

                                    8. In view of aforementioned facts and circumstances of the case, the
                                    impugned cognizance/summoning order dated 22.05.2026 is hereby set-
                                    aside. Learned Chief Judicial Magistrate, Mau is hereby directed to take
                                    fresh cognizance of offence, if required, after compliance of mandatory
                                    provisions as defined under section 223 BNSS.

                                    9. Accordingly, the instant application is party allowed.

                                    September 16, 2026
                                    Saif
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad