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2026 DAILYLAW 4267 (ALL)

Mahendra Singh v. State of U. P.

2026-01-22

Praveen Kumar Giri

body2026
JUDGMENT : PRAVEEN KUMAR GIRI, J. 1. Heard Sri Puneet Bhadauria along with Hukum Singh, learned counsel for the applicants, Sri Ajay Dubey, learned counsel for opposite party No.2 and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State. 2. Earlier, in the present application, this Court has passed an order dated 05.01.2026, paragraph Nos. 1 to 11 of the same are delineated below for ready reference: “1. Learned counsel for the applicants submits that he has filed the instant application under Section 528 BNSS with the relief which has been mentioned in the prayer clause of the application. 2. The relief which has been mentioned in the application is delineated below:- “It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the Summoning order dated 20.08.2025 whereby, the Applicant Nos. 1, 2, 5, 6 and 7 have summoned under Section 190, 191(2, 115(2), 352, 351(2), 121(1) and 132 B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act and the Applicant Nos. 3 and 4 have been summoned under Sections 190, 191(2), 115(2), 352, 351(2), 121(1) and 132 and 74 of B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act passed by Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra as well as entire proceeding of Complaint Case No. 133/2024 (Smt. Suman Vs. Mahendra Singh and others) pending in the court of Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra and or pass such other or further order which may this Hon'ble may deem fit and proper in the facts and circumstances of the case, else the applicants shall suffer irreparable loss and injury.” 3. Learned counsel for the applicants, Shri Puneet Bhadauria, submits that for the same cause of action a First Information Report (F.I.R.) was lodged on 06.07.2024 against the applicants as Case Crime No. 114 of 2024 (State vs. Durgesh and others) under Sections 223 , 191(2), 115(2), 352, 351(2) BNS, and investigation is still going on in the matter and no police report has been submitted yet before the Court of Magistrate. 4. Learned counsel for the applicants further submits that for the same cause of action, another person of the same family filed Complaint Case No. 133 of 2024 (Smt. Suman vs. Mahendra Singh and others) on 17.08.2024. 5. 4. Learned counsel for the applicants further submits that for the same cause of action, another person of the same family filed Complaint Case No. 133 of 2024 (Smt. Suman vs. Mahendra Singh and others) on 17.08.2024. 5. Learned counsel for the applicants also submits that the learned Court of Special Judge, SC/ST Act, Agra recorded the statement of complainant Smt. Suman on 18.09.2024 under Section 223 BNSS and thereafter on 23.11.2024, the learned Special Judge, SC/ST Act, Agra recorded the statement of complainant witness No. 1 Shivendra Singh and on 08.01.2025 complainant witness No.2 Suman under Section 225 BNSS. 6. Learned counsel for the applicants relying upon the entire order-sheet of Complaint Case No. 133 of 2024 contends that the complaint was filed on 17.08.2024 by Smt. Suman and her statement was recorded on 18.09.2024 and, therefore, the statement of complainant witness No. 1, Shivendra Singh was recorded on 23.11.2024 and on 08.01.2025, the statement of complainant witness No. 2, namely Suman, was recorded and thereafter on 07.08.2025, the matter was fixed for summoning of the accused-applicants on 20.08.2025 but in the paragraph No.3 of the summoning order, the Special Judge recorded statements of complainant witness No.1 Shivendra Singh and complainant witness No.2 Dharmendra Singh. 7. Learned counsel for the applicants further submits that on 20.08.2025, the learned Special Judge summoned the accused-applicants, Mahendra Singh, Durgesh Singh, Suraj, Malikhan Singh and Sonu under Sections 190, 191(2), 115(2), 352, 351(2), 121(1), 132 BNS and 3(1)(da), 3(1)(dha), 3(2)(va) of the SC/ST Act and accused-applicants, Bhola and Charan Singh under Sections 190, 191(2), 115(2), 352, 351(2), 121(1), 132, 74 BNS and 3(1)(da), 3(1)(dha), 3(2) (va) of the SC/ST Act. 8. Learned counsel for the applicants contends that Section 223 , first proviso of BNSS categorically mentions that no Court shall take cognizance without providing opportunity of hearing to the proposed accused persons and in the present case, the learned Special Judge has taken cognizance as well as summoned the accused applicants without providing any opportunity of hearing to the accused/applicants against the provisions of law. The provisions of Section 223 BNSS are delineated below: “223. The provisions of Section 223 BNSS are delineated below: “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 under this section 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: (2) A Magistrate shall not take cognizance on a complaint against a 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.” 9. Learned counsel for the applicants further submits that this Court, in paragraph No. 16 of the judgment of Prempal and 3 others vs. State of U.P. and Another; 2025:AHC:212689, has categorically held that before taking cognizance and summoning the accused persons under the BHARATIYA NAGARIK SURAKSHA SANHITA in a complaint case, the accused must be provided opportunity of hearing as per the law provided under Section 223 (1), first proviso of BNSS. The paragraph No.16 is quoted below: “16. With effect from July 1, 2024, the Judicial Magistrate is required to afford the accused an opportunity of hearing prior to the issuance of summons in a complaint case, in compliance with the First Proviso to Section 223 (1) of the BNSS.” 10. The paragraph No.16 is quoted below: “16. With effect from July 1, 2024, the Judicial Magistrate is required to afford the accused an opportunity of hearing prior to the issuance of summons in a complaint case, in compliance with the First Proviso to Section 223 (1) of the BNSS.” 10. Learned counsel for the applicants also submits that taking cognizance and summoning the accused persons without providing opportunity of hearing violates the fundamental rights of the accused/applicants provided under Article 21 of the Constitution of India, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. 11. Learned counsel for the applicants further states that the learned Special Judge has not only abused the process of BNSS but has also violated Article 21 of the Constitution of India by not following the due procedure before summoning the accused-applicants. (emphasis supplied)” 3. Learned counsel for opposite party No.2, Sri Ajay Dubey, fairly submits that the provision of Section 223 first proviso of BNSS has been violated, as opportunity of hearing has not been provided to the accused. However, he further submits that the summoning order dated 20.08.2025 may be set aside at this stage and the matter may be remitted to the concerned Court of S.C./S.T. Act, Agra for passing a fresh order after providing an opportunity of hearing to the proposed accused persons. 4. Learned A.G.A., Sri Pankaj Kumar Tripathi, has also adopted the arguments advanced by learned counsel for opposite party No.2. 5. Learned Special Judge, S.C./S.T. Act, Agra has taken cognizance as well as summoned the accused-applicants without providing opportunity of hearing as provided under Section 223 First Proviso of the BNSS as held by a Division Bench of this Court in paragraph 16(iii) of the judgment of Deepu and Ors. v State of U.P. and Ors. , (2024) 8 ILRA 903 (Crl. Misc. Writ Petition No.12287 of 2024) that the cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS. Although the BNSS has come into force on 1 July 2024 and if the alleged offence took place prior to the date of its enforcement, it is a settled principle of law that the procedure, that is more beneficial to the accused must be adopted. Although the BNSS has come into force on 1 July 2024 and if the alleged offence took place prior to the date of its enforcement, it is a settled principle of law that the procedure, that is more beneficial to the accused must be adopted. In case of Deepu (Supra), the Division bench of this Court in paragraph no.16 (iii) held that on or after 01.07.2024, the procedure mentioned under the Bhartiya Nagarik Suraksha Sanhita, 2023 shall be applicable on offences committed under the Indian Penal Code or other Special Act. The paragraph No. 16 is delineated below: “16. On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr.P.C. by BNS and BNSS respectively and same is being mentioned as below: (i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS. (ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr.P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr.P.C.; (iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS. (iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS (v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgement passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr.P.C. will apply. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr.P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C. (emphasis supplied)” 6. (vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr.P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr.P.C. (emphasis supplied)” 6. This Court, in view of the submissions raised by learned counsel for the parties and after perusal of the entire record is setting aside the order dated 20.08.2025 and remits the matter to the Special Judge, S.C./ S.T. Act, Agra with a direction to provide an opportunity of hearing to the proposed accused persons as per Section 223 first proviso of BNSS and thereafter pass an order either under Section 226 or under Section 227 BNSS against the accused-applicants and proceed further in accordance with law. 7. Accordingly, the application is disposed of with the aforesaid directions. 8. The trial court is directed to complete all necessary formalities within a period of two months from the date of this order. 9. This Court makes it clear that if any remark is made against the presiding officer, the same shall not affect the service as well as career of the concerned presiding officer in future.