HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 36789 of 2025 Court No. - 74 HON'BLE SANJAY KUMAR PACHORI, J. 1. Ms. Monika Pal, learned counsel for the applicant and Sri Alok Mishra, learned A.G.A. for the State are present. 2. The present application under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been filed to quash the order dated 13.6.2025 passed by Special Judge (D.A.A.) Mainpuri in complaint case No. 75 of 2024, whereby learned Magistrate took cognizance under Sections 310(2), 115(2), 352 of B.N.S. (Sections 395, 323, 504, I.P.C.), Police Station Kotwali, District Mainpuri without issuing mandatory notice to the applicant under first proviso to sub section (1) of Section 223 of B.N.S.S. 3. Learned counsel for the applicant submits that the impugned order has been passed without considering the facts, circumstances and position of law. It is further submitted that the present complaint has been filed on 23.9.2024 (after enforcing the BNSS on 1.7.2024). It is further submitted that the cognizance order has been passed without giving opportunity of hearing to the present applicant (accused person) as provided in first proviso to Section 223(1) BNSS. Entire order sheet has been filed in this regard. 4. First proviso to sub section (1) of Section 223 of BNSS is quoted 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: Versus Counsel for Applicant(s) : Atul Pal, Monika Pal Counsel for Opposite Party(s) : G.A. Aman Kumar .....Applicant(s) State of U.P. and Another .....Opposite Party(s) Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: 5. There is no other point for consideration except not issuing mandatory notice to the applicant under first proviso to sub section (1) of Section 223 of BNSS. Due to this reason, the opportunity to hear opposite party No. 2 is dispensed with. 6. In view of the above facts and circumstances, the impugned order is not sustainable in law. The present application is allowed and the order dated 13.6.2025 is, hereby, quashed. 7. The court concerned is directed to pass a fresh order after complying the provision of first proviso to sub section (1) of Section 223 of BNSS after hearing both the parties. September 23, 2025 T. Sinha NA528 No. 36789 of 2025 2 (Sanjay Kumar Pachori,J.) Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad