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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW
Saurabh Lavania, J.
Mayank Tripathi and others - Applicants
Versus
State of U.P. Thru. Prin. Secy. Home Lko. and another - Opposite Parties
Application U/S 528 BNSS No. - 368 of 2026
Decided On : 04-02-2026
| Table of Content |
|---|
| 1. application seeking quash of criminal proceeding. (Para 3 , 5 , 6) |
| 2. procedural requirements before taking cognizance. (Para 4 , 7 , 11) |
| 3. interpretation of section 223 and procedural adherence. (Para 8 , 10) |
| 4. masgistrate's obligation to provide an opportunity of hearing. (Para 12 , 14) |
| 5. order quashed for failure to follow legal procedure. (Para 18) |
JUDGMENT :
Saurabh Lavania, J.
1. Heard Sri Prabhu Ranjan Tripathi, learned counsel for the applicant and learned A.G.A. for the State.
2. In view of the settled legal position, this Court is not inclined to issue notice to opposite party no.2.
3. The applicants have instituted instant application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (here-in-after referred as BNSS) seeking following relief(s):-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the entire criminal proceeding of Criminal Case No. 5554 of 2024 inclusive of impugned summoning order dated 04.10.2024 passed by Additional Civil Judge (S.D.)-I/Additional Chief Judicial Magistrate, Sultanpur, by which the learned Court below has summoned the petitioners in routine and mechanical manner in relation to offences Under section 85, 115(2), 352, 351 (2) B.N.S. & 3/4 D. P. Act (Annexure No. 1), in order to meet ends of justice."
4. In view of relevant provisions pointed out, at the very outset it is stated that at this stage the prayer of the applicant which relates to procedure adopted by learned Additional Civil Judge (S.D.)-1/Additional Chief Judicial Magistrate, Sultanpur (in short Magistrate) while passing the order dated 04.10.2024 in Criminal Case No.5524/2024 be considered leaving it open to challenge the pending criminal proceedings, if cause arises. Prayer acceded.
5. Learned counsel for the applicants submitted that by means of the impugned order dated 04.10.2024 the applicants have been summoned to face the trial for the offence under section(s) 85, 115(2), 352, 351(2) B.N.S. and 3/4 D.P. Act.
6. It is further submitted that impugned order dated 04.10.2024 is in violation of the statutory provision i.e. Section 223 of BNSS, according to which before taking cognizance and summoning the accused the Magistrate/Court concerned is under obligation to issue notice(s) for affording an opportunity of hearing, and in the instant case only after recording all the statement(s) of the complainant and the witnesses, the Magistrate has passed the order dated 04.10.2024.
7. Reference has been made to Section 200 Code of Criminal Procedure (in short 'Cr.P.C.') (now repealed) and Section 223 of BNSS which reads as under:-
| Section 200 of Cr.P.C., 1973 | Section 223 of BNSS, 2023 |
|---|---|
| Examination of complainant. | Examination of complainant. |
| A Magistrate 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: | (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, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-- | Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: |
| (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 | Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses— |
| (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: | (a) if a public servant acting or pu |
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