The court held that failure to provide an opportunity for hearing before summoning accused is a violation of procedural rights and Article 21 of the Constitution.

JUDGMENT :

PRAVEEN KUMAR GIRI, J.

1. Heard Sri Puneet Bhadauria along with Hukum Singh, learned counsel for the applicants, Sri Ajay Dubey, learned counsel for opposite party No.2 and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State.

2. Earlier, in the present application, this Court has passed an order dated 05.01.2026, paragraph Nos. 1 to 11 of the same are delineated below for ready reference:

“1. Learned counsel for the applicants submits that he has filed the instant application under Section 528 BNSS with the relief which has been mentioned in the prayer clause of the application.

2. The relief which has been mentioned in the application is delineated below:-

“It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the Summoning order dated 20.08.2025 whereby, the Applicant Nos. 1, 2, 5, 6 and 7 have summoned under Section 190, 191(2, 115(2), 352, 351(2), 121(1) and 132 B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act and the Applicant Nos. 3 and 4 have been summoned under Sections 190, 191(2), 115(2), 352, 351(2), 121(1) and 132 and 74 of B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act passed by Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra as well as entire proceeding of Complaint Case No. 133/2024 (Smt. Suman Vs. Mahendra Singh and others) pending in the court of Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra and or pass such other or further order which may this Hon'ble may deem fit and proper in the facts and circumstances of the case, else the applicants shall suffer irreparable loss and injury.”

3. Learned counsel for the applicants, Shri Puneet Bhadauria, submits that for the same cause of action a First Information Report (F.I.R.) was lodged on 06.07.2024 against the applicants as Case Crime No. 114 of 2024 (State vs. Durgesh and others) under Sections 223 , 191(2), 115(2), 352, 351(2) BNS, and investigation is still going on in the matter and no police report has been submitted yet before the Court of Magistrate.

4. Learned counsel for the applicants further submits that for the same cause of action, another person of the same family filed Complaint Case No. 133 of 2024 (Smt. Suman vs. Mahendra Singh and others) on 17.08.2024.

5. Learned counsel for the applicants also submits that the learned Court of Special Judge, SC/ST Act, Agra recorded the statement of complainant Smt. Suman on 18.09.2024 under Section 223 BNSS and thereafter on 23.11.2024, the learned Special Judge, SC/ST Act, Agra recorded the statement of complainant witness No. 1 Shivendra Singh and on 08.01.2025 complainant witness No.2 Suman under Section 225 BNSS.

6. Learned counsel for the applicants relying upon the entire order-sheet of Complaint Case No. 133 of 2024 contends that the complaint was filed on 17.08.2024 by Smt. Suman and her statement was recorded on 18.09.2024 and, therefore, the statement of complainant witness No. 1, Shivendra Singh was recorded on 23.11.2024 and on 08.01.2025, the statement of complainant witness No. 2, namely Suman, was recorded and thereafter on 07.08.2025, the matter was fixed for summoning of the accused-applicants on 20.08.2025 but in the paragraph No.3 of the summoning order, the Special Judge recorded statements of complainant witness No.1 Shivendra Singh and complainant witness No.2 Dharmendra Singh.

7. Learned counsel for the applicants further submits that on 20.08.2025, the learned Special Judge summoned the accused-applicants, Mahendra Singh, Durgesh Singh, Suraj, Malikhan Singh and Sonu under Sections 190, 191(2), 115(2), 352, 351(2), 121(1), 132 BN