SMT. VEDMEENA SINGH AND ANOTHERversusSTATE OF U.P. AND ANOTHER

        HIGH COURT OF JUDICATURE AT ALLAHABAD

        APPLICATION U/S 528 BNSS No. - 41192 of 2024

Smt. Vedmeena Singh And Another
                                                     .....Applicant(s)
                               Versus
State of U.P. and Another
                                                        .....Opposite
                                                              Party(s)

Counsel for Applicant(s)     : Piyush Dubey, Rahul Chaudhary,
                               Vivek Sharma
Counsel for Opposite Party(s): G.A., Nand Kishor Mishra, Rishabh
                               Raj, Shilpa Ahuja, Vaibhav Singh

Court No. - 82
              HON'BLE PADAM NARAIN MISHRA, J.

1. Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri
Rahul Chaudhary, learned counsel for the applicant, Sri Risabh Raj,
learned counsel for the Opposite Party No.2 as well as Sri Jhamman
ram, Learned AGA for the State and perused the materials available
on record.

2. The present application u/s 528 BNSS has been filed with a prayer
to quash the entire proceeding of the Case No. 1671 of 2024 arising
out of 458 of 2024 under section 318(4), 338, 336(4) and 340(2) of
BNS, P.S. Amroha Nagar, District Amroha as well as summoning
order dated 29.10.2024 passed by the CJM, Amroha.

3. Brief fact of the present case is that the present case was lodged
pursuant to an application under Section 156(3) Cr.P.C. and after due
investigation, the Investigating Officer has submitted a final report
finding no sufficient evidence against the applicant. Thereafter,
opposite party no. 2 filed a protest petition on 23.10.2024 which was
treated as the complaint without following the procedure provided
under section 223 BNSS, the learned Magistrate, summoned the
applicants under section 318(4), 338, 336(4) and 340 (2) BNS vide
order dated 29.10.2024.

4. Learned He further submitted that the impugned order has been
passed without affording an opportunity of being heard to the
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applicant. He further submitted that the learned court has ignored the
statutory mandate of section 223 of BNSS. He lastly submitted that
the impugned order is not sustainable in the eyes of law. Thus, it is
liable to be set aside. In support of his contentions, the learned
counsel placed reliance upuom the judgnent of Supreme Court
passed in the case of Vishnu Kumar Tiwari vs State of Uttar
Pradesh 2019 (8) SCC 27.

5. Learned AGA could not dispute the aforesaid facts.

6. Considering the submissions advanced by the learned counsel of
the parties and perusing the material available on records, it is
evident that the impugned order dated 29.10.2024 has been passed
ignoring the statutory provision of Section 223 of BNSS.

7. At this juncture, it is relevant to discuss the section 223 of BNSS.
Section 223 BNSS provides that the 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. The first proviso appended to the Section provides that no
cognizance of an offence shall be taken by the Magistrate without
giving the accused an opportunity of being heard. The second proviso
appended to the Section provides certain contingencies under which,
the Magistrate need not examine the complainant and witnesses, if
complaint is in writing. The relevant Section 223(1) BNSS is 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
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                                                                    3

                                    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."

                                    8. In view of above, after recording statement of the complainant and
                                    the witnesses, if any, the Magistrate before taking cognizance in the
                                    matter, shall afford an opportunity of being heard to the accused in
                                    the light of the first proviso of the section 223 of BNSS. In the present
                                    case, the mandate of section 223 of BNSS is not compiled with.

                                    9. In view of the above facts and circumstances, the summoning
                                    order dated 29.10.2024 passed by the CJM, Amroha in the Case No.
                                    1671 of 2024, arising out of 458 of 2024 is hereby set aside.

                                    10. The court concerned is directed to pass a fresh order in the light
                                    of the observation made hereinabove.

                                    11. Accordingly, application is disposed of.

                                    February 12, 2026
                                    Akram
                                                                                   (Padam Narain Mishra,J.)




Digitally signed by :-
MOHAMMAD AKRAM
High Court of Judicature at Allahabad