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NEUTRAL CITATION

R/CR.MA/6401/2026 ORDER DATED: 08/05/2026

0.8620878679521373

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE

FIR/ORDER) NO. 6401 of 2026

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JAYDEEPSINH PRATAPSINH VAGHELA

Versus

STATE OF GUJARAT & ANR.

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Appearance:

MR CHETAN K PANDYA(1973) for the Applicant(s) No. 1

DIGPALSNGH H RATHORE(8083) for the Respondent(s) No. 2

MR.MANAN MAHETA, APP for the Respondent(s) No. 1

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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

Date : 08/05/2026

ORAL ORDER

1. This application for quashment of the complaint under

section 138 read with section 142 of N.I.Act.

2. This Court has passed following order on 13.04.2026:

Learned advocate Mr. Pandya submits that while issuing the

summons, the learned trial Court has not followed the procedure

prescribed under Section 223 of the Bharatiya Nagarik Suraksha

Sanhita, 2023. It is submitted by the learned advocate Mr. Pandya

that the proviso of the above section provides that before issuing the

summons, the accused is required to be heard or an opportunity of

hearing is required to be given. It is submitted by the learned

advocate Mr. Pandya that in absence of the same, the order of

issuance of the summons dated 24.01.2025 is passed.

Considering the submissions, let Notice be issued making it returnable

on 23.04.2026.

Direct Service is permitted

3. Today learned advocate Mr.Digpalsinh Rathore,

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NEUTRAL CITATION

R/CR.MA/6401/2026 ORDER DATED: 08/05/2026

0.8620878679521373

appearing for the respondent, has submitted that

admittedly, the requirement of section 223 of BNSS,

2023 has not been complied with. It is submitted that if

the matter is remanded back to the learned Magistrate

Court with direction to comply with the provision of

section 223 of BNSS, 2023 to then proceed further, he

does not have any objection.

4. This Court has referred the provision of section 223 of

BNSS, 2023, which is reproduced hereinbelow:

Section 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.

(2) A Magistrate shall not take cognizance on a complaint against a

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NEUTRAL CITATION

R/CR.MA/6401/2026 ORDER DATED: 08/05/2026

0.8620878679521373

public servant for any offence alleged to have been committed in

course of the discharge of his official functions or duties unless—

(a) such public servant is given an opportunity to make assertions as

to the situation that led to the incident so alleged; and

(b) a report containing facts and circumstances of the incident from

the officer superior to such public servant is received.

5. This Court has also referred the decision of the Apex

Court in the case of Kushal Kumar Agarwal Vs

Direct