IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.1208 of 2025 Date of Decision: 18.8.2026 _____________________________________________________________________ Gian Chand and Anr. ……...Petitioners Versus State of Himachal Pradesh and Ors. …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioners: Mr. Ganesh Barowalia and Ms. Yogita Sharma, Advocates. For the Respondents: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General and Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the State. Mr. Ritik Prasher and Mr. Bhanu Verma, Advocates, for respondents No.4 & 5. ___________________________________________________________________________ Sandeep Sharma, J. (Oral) By way of the instant petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the 'BNSS'), prayer has been made by the petitioners for quashing of Kalandra dated 18.07.2025 presented by the Station House Officer, Police Station Lambagaon, Alampur, Tehsil Jaisinghpur, District Kangra, Himachal Pradesh, pending in the Court of the learned Sub Divisional Magistrate, Jaisinghpur, District Kangra, along with consequent proceedings, i.e. 2 summon dated 03.10.2025 issued in case titled State of Himachal Pradesh v. Kamal Kishore. 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties, are that respondent No. 5 filed an online complaint on 13.07.2025 against the petitioners, alleging therein that on 13.07.2025, petitioners namely Gian Chand and Puneet Kashyap, quarreled with them and hurled abuses on account of the land dispute. Police, after having received the aforesaid complaint from the office of the Hon'ble Chief Minister, Himachal Pradesh, conducted investigation and presented Kalandra under Sections 126 and 129 of the BNSS in the Court of the learned Sub Divisional Magistrate, Jaisinghpur, District Kangra, Himachal Pradesh. The learned Sub- Divisional Magistrate, having taken note of the material adduced on record by the police, proceeded to issue show cause notice dated 07.08.2025 to both the petitioners, thereby calling upon them to remain present before him on 27.08.2025. 3. Mr. Ganesh Barowalia, learned counsel appearing for the petitioners, while making this Court peruse the complaint lodged at the behest of respondents No.4 & 5, vehemently argued that since dispute inter-se parties arose on account of a land dispute, the learned Sub- 3 Divisional Magistrate otherwise ought not have taken cognizence of the matter while exercising power under Section 126 of the BNSS, rather before initiating proceedings under the afore provision of law, he was required to pass an order under Section 130 of the BNSS, especially calling upon the accused named in the complaint to explain their position, but in the case at hand, afore authority without following due process of law, straightaway proceeded to issue notice under Section 126 of the BNSS, which is not permissible. 4. Mr. Rajan Kahol, learned Additional Advocate General and Mr. Ritik Prasher, Advocate, appearing for respondents No.4 & 5, while supporting the impugned notice, submitted that otherwise also, no prejudice, if any, can be said to have been caused to the petitioners in coming present before the authority concerned, pursuant to their having received notice dated 07.08.2025 because, bare perusal of the same nowhere suggests that final order, if any, has been passed, rather very purpose and object of issuing the aforesaid notice to the petitioners is to provide them an opportunity to explain their position. They further submitted that since non-adherence to the procedure as prescribed under Section 130 of BNSS is a procedural irregularity, which can be rectified, prayer made on behalf of the petitioners for quashing of Kalandra on the 4 aforesaid ground cannot be accepted, rather at best, direction can be issued to the Sub Divisional Magistrate to take cognizance of the Kalandra submitted by the police strictly in terms of the provisions contained under Sections 126 to 130 of BNSS. 5. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the impugned show cause notice, this Court is persuaded to agree with Mr. Ganesh Barowalia, learned counsel representing the petitioners, that the learned Sub Divisional Magistrate has committed illegality while straightaway issuing notice under Section 126 of BNSS to the petitioners, rather, as per provisions contained under Sections 126 to 130 of BNSS, he, after having received Kalandra, ought to have passed an order under Section 130 at the first instance, thereby satisfying himself that a prima facie case exists in favour of the complainant. 6. At this stage, it would be apt to take note of Section 130 of BNSS, which reads as under: “130. Order to be made. When a Magistrate acting under section 126, section 127, section 128 or section 129, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which 5 it is to be in force and the number of sureties, after considering the sufficiency and fitness of sureties.” 7. Careful perusal of the aforesaid provision of law clearly reveals that when an Executive Magistrate acting under Section 126, Section 127, Section 128, or Section 129 deems it necessary to require any person to show cause under such Section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character, and class of sureties, if any, required, after considering the sufficiency and fitness of the sureties. Admittedly, in the case at hand, police, after having conducted investigation, filed Kalandra in the Court of learned Sub Divisional Magistrate, but the aforesaid authority, without adhering to the provisions contained under Section 130, proceeded to issue summons dated 07.08.2025 (Annexure P-4), thereby calling upon the petitioners herein to come present before him on 27.08.2025, whereas, as per Section 130, the aforesaid authority, while acting under Section 126, ought to have passed an order in writing setting forth the substance of the information received and issue show cause notice to the accused, detailing therein the amount of the bond to be executed as well as the term for which the order proposed to be passed by him shall remain in force. Since in the case at hand, the aforesaid authority, without passing a preliminary order 6 as provided under Section 130 of BNSS, proceeded to issue show-cause notice to the petitioners under Section 126 of BNSS, further proceedings, if any, pursuant to Section 126 of BNSS cannot be permitted to proceed. 8. Consequently, in view of the above, this Court finds merit in the petition and accordingly, the same is partly allowed. Show cause notice dated 07.08.2025 and subsequent summons dated 03.10.2025 issued to the petitioners are quashed and set aside, reserving liberty to the Sub- Divisional Magistrate, Jaisinghpur, to proceed further in the matter, taking into consideration the observations made hereinabove. In the aforesaid terms, present petition is disposed of along with pending applications, if any. August 18, 2026 (Sandeep Sharma), (manjit) Judge