It is further contended that as per proviso of Section 223(1) of BNSS-2023, no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard but he has failed to do so. Section 223(1) of BNSS-2023 reads 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: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.
(2) XXXX"
5. Learned A.G.A. opposed the appeal but did not dispute the legal position of law.
6. Upon hearing the rival submissions and perusal of the record, this Court finds that the learned Special Judge has passed the impugned summoning order without giving opportunity of hearing.
7. Accordingly, the present criminal appeal stands allowed. The impugned summoning order dated 25.04.2025, passed by Special Judge (SC/ST) Act Sonbhadra, is hereby quashed and set-aside. The matter is remanded to the court below to pass a fresh order in accordance with law after providing opportunity of hearing to all the concerned.
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 10890 of 2025
Mekala Chandra Shekar And 2 Others Vs State of U.P. and Another
Author: SHEKHAR KUMAR YADAV, J.
Dated: November 25, 2025
1. Heard learned counsel for the appellants and learned A.G.A for the State as well as perused the record.
2. The present criminal appeal under Section 14-A(1) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred to set-aside the impugned summoning order dated 25.04.2025, passed by Special Judge (SC/ST) Act Sonbhadra in Complaint Case No. 20 of 2025 (Ashish Kumar Vs. Santosh Maurya and others) under Sections 115(2), 352, 351(3) B.N.S. and 3(1)(r) SC/ST Act, pending in the court of Special Judge (SC/ST) Act Sonbhadra.
3. It is contended by learned counsel for the applicants that the appellants are innocent and have been falsely implicated in the present case. The appellants have not committed any offence as alleged in the impugned FIR. It is further contended that as per proviso of Section 223(1) of BNSS-2023, no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard but he has failed to do so. Section 223(1) of BNSS-2023 reads 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: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.
(2) XXXX"
4. Learned counsel for the appellants further contends that the appellants that the learned Special Judge SC/ST Act has not applied his judicial mind and allowed the complaint of opposite party no.2 in cursory manner without providing opportunity of hearing to the appellants. The impugned summoning order is illegal and abuse of process of law and the same is liable to be dismissed.
5. Learned A.G.A. opposed the appeal but did not dispute the legal position of law.
6. Upon hearing the rival submissions and perusal of the record, this Court finds that the learned Special Judge has passed the impugned summoning order without giving opportunity of hearing.
7. Accordingly, the present criminal appeal stands allowed. The impugned summoning order dated 25.04.2025, passed by Special Judge (SC/ST) Act Sonbhadra, is hereby quashed and set-aside. The matter is remanded to the court below to pass a fresh order in accordance with law after providing opportunity of hearing to all the concerned.
November 25, 2025
(Shekhar Kumar Yadav,J.)
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