HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 41192 of 2024 Court No. - 82 HON'BLE PADAM NARAIN MISHRA, J. 1. Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri Rahul Chaudhary, learned counsel for the applicant, Sri Risabh Raj, learned counsel for the Opposite Party No.2 as well as Sri Jhamman ram, Learned AGA for the State and perused the materials available on record. 2. The present application u/s 528 BNSS has been filed with a prayer to quash the entire proceeding of the Case No. 1671 of 2024 arising out of 458 of 2024 under section 318(4), 338, 336(4) and 340(2) of BNS, P.S. Amroha Nagar, District Amroha as well as summoning order dated 29.10.2024 passed by the CJM, Amroha. 3. Brief fact of the present case is that the present case was lodged pursuant to an application under Section 156(3) Cr.P.C. and after due investigation, the Investigating Officer has submitted a final report finding no sufficient evidence against the applicant. Thereafter, opposite party no. 2 filed a protest petition on 23.10.2024 which was treated as the complaint without following the procedure provided under section 223 BNSS, the learned Magistrate, summoned the applicants under section 318(4), 338, 336(4) and 340 (2) BNS vide order dated 29.10.2024. 4. Learned He further submitted that the impugned order has been passed without affording an opportunity of being heard to the Versus Counsel for Applicant(s) : Piyush Dubey, Rahul Chaudhary, Vivek Sharma Counsel for Opposite Party(s): G.A., Nand Kishor Mishra, Rishabh Raj, Shilpa Ahuja, Vaibhav Singh Smt. Vedmeena Singh And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) applicant. He further submitted that the learned court has ignored the statutory mandate of section 223 of BNSS. He lastly submitted that the impugned order is not sustainable in the eyes of law. Thus, it is liable to be set aside. In support of his contentions, the learned counsel placed reliance upuom the judgnent of Supreme Court passed in the case of Vishnu Kumar Tiwari vs State of Uttar Pradesh 2019 (8) SCC 27. 5. Learned AGA could not dispute the aforesaid facts. 6. Considering the submissions advanced by the learned counsel of the parties and perusing the material available on records, it is evident that the impugned order dated 29.10.2024 has been passed ignoring the statutory provision of Section 223 of BNSS. 7. At this juncture, it is relevant to discuss the section 223 of BNSS. Section 223 BNSS provides that the 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. The first proviso appended to the Section provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. The second proviso appended to the Section provides certain contingencies under which, the Magistrate need not examine the complainant and witnesses, if complaint is in writing. The relevant Section 223(1) BNSS is 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 NA528 No. 41192 of 2024 2 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." 8. In view of above, after recording statement of the complainant and the witnesses, if any, the Magistrate before taking cognizance in the matter, shall afford an opportunity of being heard to the accused in the light of the first proviso of the section 223 of BNSS. In the present case, the mandate of section 223 of BNSS is not compiled with. 9. In view of the above facts and circumstances, the summoning order dated 29.10.2024 passed by the CJM, Amroha in the Case No. 1671 of 2024, arising out of 458 of 2024 is hereby set aside. 10. The court concerned is directed to pass a fresh order in the light of the observation made hereinabove. 11. Accordingly, application is disposed of. February 12, 2026 Akram NA528 No. 41192 of 2024 3 (Padam Narain Mishra,J.) Digitally signed by :- MOHAMMAD AKRAM High Court of Judicature at Allahabad