CRL.REV.P./582/2026 of MS. RASHIM MAHAJAN Vs STATE GOVT. OF NCT OF DELHI AND ORS on 29 September 2026

O R D E R

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29.09.2026 CRL.M.A. 30642/2026 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application stands disposed of. CRL.REV.P. 582/2026

3. The present petition has been filed seeking the following reliefs: - “(ii) Quash and set aside the impugned summoning order dated 03.07.2026 passed by the Ld. Metropolitan Magistrate, Patiala House Courts, New Delhi in CT Case No. 164/2022, whereby the Petitioner has been summoned for offences punishable under Sections 420, 468 and 471 of the Indian Penal Code, 1860;”

4. Ms. Vibha Mahajan Seth, learned senior counsel appearing on behalf of the Petitioner, contends that the learned Trial Court, vide impugned order dated 03.07.2026, has taken cognizance of the complaint and directed issuance of summons to the Petitioner for 07.10.2026. She relies upon the first Proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 [‘BNSS’] to contend that no cognizance could have been taken by the learned Trial Court, without first giving an opportunity to the Petitioner to be heard.

5. Mr. Krishan Kumar, Advocate, enters appearance on behalf of Respondent No. 2 on advance service. He states that he does not oppose the legal submissions of the Petitioner. He states that, so as to avoid any further delay in the trial, the Court may clarify that the summons issued on 07.10.2026 may be considered as a notice to the Petitioner in terms of the first Proviso to Section 223(1) of BNSS.

5.1. He further states that, keeping in view the advanced age of Respondent Nos. 3 and 4, as well as the fact that they are terminally ill, the learned Trial Court may be directed to expedite the hearing.

6. Mr. Naresh Chahar, learned Additional Public Prosecutor for the State, as well, fairly states that in view of the first Proviso to Section 223(1) of the BNSS and the judgment of the Supreme Court in Parvinder Singh v. Directorate of Enforcement1, placed on record, the impugned order dated 1 2026 SCC OnLine SC 903

03.07.2026 taking cognizance without granting the Petitioner an opportunity of being heard is not sustainable. The relevant paragraphs of Parvinder Singh (supra) reads as under: - “27. Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India. We further hold that the word “shall” occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio. Section 531 of the BNSS, 2023 “531. Repeal and savings.— (1) The Criminal Procedure Code, 1973 (2 of 1974) is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Criminal Procedure Code, 1973 (2 of 1974), as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;” *** (emphasis supplied) …. ….

34. A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it. …. ….

38. Based on the above discussion, the views expressed by the High Court are, therefore, liable to be set aside. We do find that the allegations against the appellant are quite serious. However, non- compliance with the first proviso to Section 223(1) of the BNSS vitiates the very order taking cognizance, and the same cannot be sustained in the eyes of the law. In fact, the appellant has, at the earliest point in time, filed the application for recall of the order taking cognizance by placing reliance upon the said proviso. Had the Special Court allowed it, the trial would have proceeded further. Suffice it to state that the appellant cannot be faulted for any delay that has occasioned.” [Emphasis supplied]

7. This Court has heard the learned counsel for the parties.

8. In view of the mandate of the statutory provision and the aforesaid submissions of the State and respondent no. 2, the impugned order dated 03.07.2026 taking cognizance of the complaint is hereby set aside. However, the summons issued to the Petitioner shall be construed as notice in terms of the first proviso to Section 223(1) of the BNSS. The Petitioner is directed to appear before the learned Trial Court on 07.10.2026 to make her submissions in terms of the first proviso to Section 223(1) of the BNSS. The learned Trial Court shall thereafter proceed with the complaint in accordance with law.

9. It is clarified that the impugned order dated 03.07.2026 has been set aside only for non-compliance with the first Proviso to Section 223(1) of the BNSS and there has been no examination or adjudication by this Court on the merits of the allegations made in the complaint.

10. The petition is allowed. Pending application is disposed of.

11. The digitally signed copy of this order, duly uploaded on the official website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as a certified copy of the order for the purpose of ensuring compliance. No physical copy of the order shall be insisted upon by any authority/entity or litigant.

MANMEET PRITAM SINGH ARORA, J SEPTEMBER 29, 2026/msh/aa