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Allahabad High Court

ISRARversusSTATE OF U.P. AND ANOTHER

Decided

Holding

The summoning order is set aside and the magistrate must pass a fresh order after giving the applicant an opportunity of hearing.

Summary

Israr filed an application under Section 528 of the B.N.S.S. seeking to quash a summoning order dated 26‑03‑2025 and the proceedings in Complaint No. 500 of 2025 (K.B.Police (India) Ltd. v. I.S. Enterprises) before the Additional Chief Judicial Magistrate, Agra. The complaint was lodged on 10‑01‑2025 and the magistrate, after taking cognizance under Section 223, directed the complainant to produce witnesses without issuing any notice to the applicant or affording a hearing, contrary to Section 223(1). The State’s counsel did not dispute these facts. The High Court held that the magistrate’s order was vitiated by the procedural lapse, set aside the summoning order and disposed of the Section 528 application, directing the magistrate to re‑issue a fresh order after hearing the applicant within eight weeks.

Issues considered

  • Whether the magistrate erred in taking cognizance and summoning the applicant without issuing notice and providing a hearing as mandated by Section 223(1) of the B.N.S.S.

Legislation cited

Subjects

  • Section 528
  • summoning order
  • notice
  • right to be heard
  • magistrate
  • complaint
  • procedural fairness
  • B.N.S.S.
  • quash
  • criminal procedure

Judgment

                                                  HIGH COURT OF JUDICATURE AT ALLAHABAD

                                                     APPLICATION U/S 528 BNSS No. - 40534 of 2026

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

                                    Counsel for Applicant(s)                                    :    Ajay Dubey
                                    Counsel for Opposite Party(s)                               :    G.A.

                                    Court No. - 74
                                                             HON'BLE DEEPAK VERMA, J.

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


                                    2. The present 528 B.N.S.S. application has been filed to quash the impugned
                                    summoning order dated 26.03.2025 as well as entire proceedings in Complaint Case
                                    No.500 of 2025 (M/s K.B.Poli-cam (India) Ltd. vs. M/s I.S.Enterprises, under section
                                    316(2) B.N.S., Police Station Sikandara, District Agra, pending in the court of 1st
                                    Additional Chief Judicial Magistrate, Court No.1, Agra.

                                    3. Learned counsel for the applicant submits that present complaint lodged by opposite
                                    party no.2 on 10.01.2025. Court on 10.01.2025 registered a case under section 223
                                    B.N.S. as complaint and court took cognizance and directed the complainant to
                                    produce witnesses for recording the statement under sections 223 & 225 B.N.S. From
                                    the record, it is apparent that learned magistrate before taking cognizance has not
                                    issued any notice to the applicant or no opportunity of hearing was provided to
                                    applicant as per as provision provided under section 223 (1) B.N.S.S.

                                    4. Per contra, learned AGA has not disputed the facts argued by learned counsel for
                                    the applicants.

                                    5. The order dated 26.03.2025 by which the applicant has been summoned by the
                                    learned magistrate is hereby, set aside. The present application u/s 528 B.N.S.S. is
                                    disposed of with direction that learned magistrate shall pass a fresh order in
                                    accordance with law after giving opportunity of hearing to the applicant under section
                                    223 (1) B.N.S.S. within a period of eight weeks from the date of production of
                                    certified copy of this order.

                                    September 23, 2026
                                    SKD
                                                                                                     (Deepak Verma,J.)




Digitally signed by :-
SURJIT KUMAR DEY
High Court of Judicature at Allahabad


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