Neutral Citation No. - 2025:AHC:142331 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 27549 of 2025 Applicant :- Abhay Kushwaha And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinod Pandey Counsel for Opposite Party :- Dhiraj Singh,G.A. Hon'ble Dinesh Pathak,J. 1. Learned counsel for the respondent No. 2 has filed a copy of the counter affidavit today in Court, which is taken on record. 2. Heard learned counsel for the applicants, learned counsel for the respondent No. 2 as well as learned A.G.A. representing State-respondent No. 1 and perused the record on board. 3. The applicants have invoked the inherent jurisdiction of this Court under Section 528 BNSS for quashing the impugned order dated 1.7.2025 passed by the learned Special Session Judge SC/ST Act, Court No. 2, Deoria in Complaint Case No. 308 of 2024 under Sections 115(2), 352, 351, 324 BNS and 3(1) (X) of SC/ST Act, Police Station Khukhundu, District Deoria. 4. As per complaint case, there was a dispute with regard to the wages against the work done by the first informant and his family members under the scheme of MANREGA. The present applicant No. 1 is the husband of the incumbent Pradhan. On the date of occurrence of the offence i.e. 26.5.2024, the present applicants arrived at the Ghotha (animal pen) and uttered caste based slur. They allegedly thrashed the complainant and threatened to kill him. The incident was witnessed by one Tej Bahadur Singh and other co-villagers. In support of the complaint, the complainant has made his statement under Section 223 BNSS. Besides him, Tej Bahadur Singh (an independent witness), Dhananjay (son of respondent No. 2) have made their statement under Section 225 BNSS. Having considered the complaint and statements of the witnesses under Sections 223 and 225 BNSS, learned Special Judge, SC/ST Act has passed the summoning order dated 1.7.2025, which is under challenge before this Court. 5. Perusal of the order impugned dated 1.7.2025 reveals that there is no reference with regard to any objection filed on behalf of the present applicants against the complaint moved by the respondent No. 2. While the court confronted the counsel for respondent No. 2, in this respect, as to whether any notice has been served upon the present applicants, and whether they have filed any objection under the proviso to Section 223 BNSS, he has replied in affirmative and placed reliance upon the objection dated 17.3.2025 (Annexure No. 1 to the counter affidavit) filed on behalf of the present applicants. Learned Magistrate has decided the complaint in a very perfunctory manner without considering the objection filed on behalf of the present applicants which shows lack of application of mind on his part at the time of issuing summons against the present applicants under Section 115(2), 352, 351 and 324 BNSS and 3(1)(X) of SC/ST Act. 6. In this conspectus, as above, I am of the considered view that the order impugned passed by the learned Special Judge, SC/ST Act is in violation of the provisions of law as enunciated under the proviso to Section 223 of BNSS which clearly provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. The phrase 'an opportunity of being heard' employed in proviso to Section 223 BNSS clearly defines the object and intention of the legislation that no order on the complaint should be passed without according an opportunity of being heard. Thus, the defense of the opposite party, put forth by him/them, should be considered and discussed at the time of deciding the complaint and issuing summons against the proposed accused. In the matter at hand, learned Special Judge, SC/ST Act has not returned any finding as to whether any notice was issued to the present applicant/accused or whether they have filed any objection to the complaint or not. 7. Resultantly, instant application succeeds and is partly allowed. The order impugned dated 1.7.2025 passed by the Special Judge, SC/ST Act, in aforementioned case, is hereby quashed. Parties are relegated before the court below and the proceedings of the complaint is restored to its original number. Learned Special Judge, SC/ST Act, Deoria is hereby directed to decide the issuance of summons in the complaint de novo after giving proper opportunity of hearing to the parties concerned, as per law, discussed above, and make an endevaour to decide the same within a period of two months from the date of production of a certified copy of this order. 8. Both the parties are hereby directed to appear before the court below on 3.9.2025 along with a certified copy of this order. Order Date :- 20.8.2025 vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad