NA528/16192/2026 of VIKAS Vs STATE OF U.P. AND ANOTHER on 5 May 2026

1. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the material brought on record.

2. The present application under Section 528 BNSS has been filed for quashing the summoning order dated 25.09.2025 passed by learned Additional Civil Judge (J.D.)/ Judicial Magistrate, Room No. 20, District Deoria in Complaint Case No.10 of 2024 under Sections 115(2), 352 of B.N.S., Police Station Gauri Bazar, District Deoria.

3. Learned counsel for the applicants has contended that the opposite party no.2 filed a complaint for summoning of the accused-applicant under the charged Sections. He further submits that the learned trial Court after recording the statements under Section 223 and 225 of B.N.S.S. has straight away summoned the accused-applicant which is not tenable in the eyes of law. Learned counsel further contended that it is obligatory on the part of the learned trial Court that after recording of the statement of the complainant as well as witnesses, notice be issued to the applicant annexing therewith the copy of the complaint as well as statement of complainant and other witnesses taken on oath but in the present case, after recording of the statements, no notice has been issued to the applicant which is in violation of the provisions of proviso (1) of Section 223 of B.N.S.S. It is thus contended that the impugned order is bad in the eyes of law. Relying on the decision of Karnataka High Court passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil).Thus, learned counsel for the applicant submits that Versus Counsel for Applicant(s) : Agnivesh, Jadu Nandan Yadav Counsel for Opposite Party(s) : G.A. Vikas .....Applicant(s) State of U.P. and Another .....Opposite Party(s)

impugned order is illegal and unjust and is liable to be set aside.

4. At this stage, learned A.G.A. for the State could not dispute the submissions advanced by learned counsel for the applicant.

5. Having heard the rival submission of the learned counsel for the parties. It is necessary to peruse Section 223 of BNSS, which reads 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 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.

6. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity NA528 No. 16192 of 2026

to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

7. Thus, in view of above, it is necessary to hear the accused before cognizance of the offence is taken by the Magistrate. Hence, the impugned order is illegal to the extent that Magistrate took cognizance of the offences alleged in the complaint filed by the private opposite party without giving the accused-applicant an opportunity of being heard.

8. In view of above facts and discussions, present application under Section 528 BNSS is, accordingly, allowed. The impugned order dated 25.09.2025 is hereby set aside.

9. The matter is remitted to the concerned trial Court to pass afresh order, strictly in accordance with law, keeping in mind the observations made above. May 6, 2026 S.Ali/Sahani NA528 No. 16192 of 2026

(Dr. Gautam Chowdhary,J.) Digitally signed by :- SHAUKAT ALI High Court of Judicature at Allahabad