The Allahabad High Court has underscored the mandatory requirement under Section 223 of the Bharatiya Nyaya Sanhita (BNS) to provide the accused an opportunity of being heard before taking cognizance of an offence. In a significant ruling, the Court set aside a summoning order and revisional rejection, remanding the matter for fresh consideration while emphasizing strict compliance with procedural safeguards.
Background & Facts
The Dispute
The applicant, Jatin Chauhan, was summoned by the learned Additional Chief Judicial Magistrate, Ist, District Gautambudh Nagar, in Complaint Case No. 7860 of 2024 (Smt. Reshma Chanda Vs. Jatin Chauhan and others) to face trial under Section 85, Section 316(2) of the Bharatiya Nyaya Sanhita (BNS), and Sections 3/4 of the Dowry Prohibition Act. The summoning order was passed on 06.08.2025, following which the applicant filed a criminal revision challenging its legality. The revisional court, however, rejected the challenge vide order dated 09.03.2026, prompting the present application under Section 528 of the BNSS before the Allahabad High Court.
Key Facts
- The complainant, Smt. Reshma Chanda, filed an application under Section 156(3) of the Cr.P.C., which was treated as a complaint case by the learned Magistrate vide order dated 23.09.2024.
- The Magistrate recorded statements under Sections 223 and 225 of the BNSS but failed to issue notice to the applicant or provide an opportunity of being heard before taking cognizance.
- The applicant contended that the summoning order was illegal and arbitrary, as it violated the mandatory proviso under Section 223(1) of the BNSS, which requires the Magistrate to give the accused an opportunity of being heard.
- The applicant relied on a decision of the Karnataka High Court in Criminal Petition No. 7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) to support his argument.
Procedural History
- 23.09.2024: Magistrate treats Section 156(3) Cr.P.C. application as a complaint case and fixes date for recording statements.
- 06.08.2025: Magistrate passes summoning order under Section 85, Section 316(2) BNS, and Sections 3/4 Dowry Prohibition Act without providing opportunity of hearing to the applicant.
- 09.03.2026: Revisional Court rejects the applicant’s challenge to the summoning order.
- 13.05.2026: Present application under Section 528 BNSS filed before the Allahabad High Court.
Relief Sought
The applicant sought quashing of the summoning order dated 06.08.2025 and the revisional order dated 09.03.2026, along with a direction to the trial court to pass a fresh order in strict compliance with Section 223(1) of the BNSS.
The Legal Issue
The central question before the Court was whether a Magistrate can take cognizance of an offence on a complaint without providing the accused an opportunity of being heard, as mandated by the proviso to Section 223(1) of the BNSS.
Arguments Presented
For the Applicant
Learned counsel for the applicant argued that the impugned summoning order was illegal and arbitrary, as it was passed in non-compliance with the mandatory requirement under Section 223(1) of the BNSS. Specifically, the counsel contended that after recording the statements of the complainant and witnesses, the Magistrate was obligated to issue notice to the accused, annexing a copy of the complaint and statements, and provide an opportunity of being heard. The failure to do so rendered the summoning order void. The counsel relied on the decision of the Karnataka High Court in Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil to support this contention.
For the Respondent
Learned counsel for the opposite party no. 2, Ms. Preeti Chaudhary, contended that the impugned orders were legal, just, and proper, and thus did not warrant interference by the High Court. The learned Additional Government Advocate (A.G.A.) for the State did not dispute the submissions advanced by the applicant’s counsel.
The Court's Analysis
The Court undertook a detailed examination of Section 223 of the BNSS, which governs the examination of the complainant and witnesses before taking cognizance of an offence. The provision reads as follows:
"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 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.
The Court observed that the proviso to Section 223(1) of the BNSS explicitly mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. This procedural safeguard is akin to the principles enshrined under Section 204 of the Cr.P.C., which deals with the issuance of process. The Court emphasized that the opportunity of being heard is a fundamental requirement to ensure fairness and natural justice in criminal proceedings.
The Court further noted that the trial court had failed to comply with this mandatory requirement, rendering the summoning order illegal. The revisional court also erred in not considering this non-compliance while rejecting the applicant’s challenge. The Court relied on the principle that procedural irregularities, especially those affecting the rights of the accused, cannot be overlooked, as they strike at the root of fair trial guarantees.
The Verdict
The Allahabad High Court allowed the application under Section 528 of the BNSS and set aside the impugned orders dated 06.08.2025 (summoning order) and 09.03.2026 (revisional order). The matter was remitted to the concerned trial court with a direction to pass a fresh order in strict accordance with the law, preferably within a period of two months from the date of production of a certified copy of the order. The Court emphasized that the trial court must ensure compliance with the proviso to Section 223(1) of the BNSS, thereby providing the accused an opportunity of being heard before taking cognizance.
What This Means For Similar Cases
Procedural Compliance Is Non-Negotiable
This judgment reinforces the principle that procedural compliance under criminal law is not a mere formality but a cornerstone of natural justice. Practitioners must ensure that:
- Magistrates strictly adhere to the requirements of Section 223(1) of the BNSS, including providing the accused an opportunity of being heard before taking cognizance.
- Any deviation from this requirement renders the summoning order vulnerable to challenge, as demonstrated in this case.
The Burden on Trial Courts to Uphold Fair Trial Guarantees
- Trial courts must scrupulously follow procedural safeguards to avoid judicial scrutiny and potential reversal of orders.
- The judgment serves as a reminder that the rights of the accused, including the right to be heard, must be protected at every stage of criminal proceedings.
Implications for Revisional and Appellate Courts
- Revisional and appellate courts must rigorously examine whether lower courts have complied with mandatory procedural requirements.
- Non-compliance with provisions like Section 223(1) of the BNSS can be a valid ground for setting aside orders, as seen in this case.
