Jatin Chauhan vs State Of U.P. And Another

1. Heard learned counsel for the applicants, Sri Preete Chaudhary, learned counsel for the opposite party no.2 learned A.G.A. for the State as well as learned counsel for the informant and perused the material brought on record.

2. The present application under Section 528 BNSS has been filed for quashing of the order dated 06.08.2025 passed by learned Additional Chief Judicial Magistrate, Ist, District Gautambudh Nagar in Complaint Case No. 7860 of 2024 (Smt. Reshma Chanda Vs. Jatin Chauhan and others) Police Station Mahila Thana, District Gautambudh Nagar, whereby applicant has been summoned to face trial under Section 85, 316(2) of B.N.S., and Section 3/4 of dowry Prohibition Act as well as Judgement and order dated 09.03.2026 passed by learned Additional Sessions Judfge, Court No.06, District Gautambudh Nagarin Criminal Revision No. 579 of 2025 (Jatin Chauhan Vs. State of U.P. and another) whereby revision filed against the summoning order dated 06.08.2025 has also been rejected.

3. Learned counsel for the applicants submits that an application under Section 156 (3) Cr.P.C., was filed before the learned Magistrate which was treated as a complaint case vide order dated 23.09.2024 fixing next date for recording of statements under Section 223. Thereafter, the court concerned recorded statements under Sections 223 and 225 of B.N.S.S. and after recording the same, the applicant has been summoned to face trial. Learned counsel further argued that the impugned summoning order was wholly illegal, and arbitrary and was in non-compliance of Section 223(1) B.N.S.S. and as such the application filed a criminal revision against the same, however the same has also been rejected vide order impugned. Learned counsel further contended that it is obligatory on the part of the learned trial Court that after recording of the statement of the complainant as well as witnesses, notice be issued to the applicants annexing therewith the copy of the complaint as well as statement of complainant and other witnesses taken on oath but in the present case, after recording of the statements, no notice has been issued to the applicants which is in violation of the provisions of proviso (1) of Section 223 of B.N.S.S which has also not been considered by the revisional Court. It is thus contended that the impugned order is bad in the eyes of law. Relying on the decision of Karnataka High Court passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil).Thus, learned counsel for the applicant submits that impugned order is illegal and unjust and is liable to be set aside.

4. At this stage, learned A.G.A. for the State could not dispute the submissions advanced by learned counsel for the applicant. However, Ms. Preeti Chaudhary, learned counsel for the opposite party no.2 has contended that the impugned orders are perfectly legal, just and proper which calls for no interference by this Court.

5. Having heard the rival submission of the learned counsel for the parties. It is necessary to peruse Section 223 of BNSS, which 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.

6. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

7. Thus, in view of above, it is necessary to hear the accused before cognizance of the offence is taken by the Magistrate. Hence, the impugned order is illegal to the extent that Magistrate took cognizance of the offences alleged in the complaint filed by the private opposite party without giving the accused-applicant an opportunity of being heard.

8. In view of above facts and discussions, present application under Section 528 BNSS is, accordingly, allowed. The impugned orders dated 09.03.2026 and 06.08.2025 passed by the revisional Court and trial Court respectively are hereby set aside.

9. The matter is remitted to the concerned trial Court to pass afresh order, strictly in accordance with law, as expeditiously as possible, preferably withing a period of two months from the date of production of a certified copy of the order before it, keeping in mind the observations made above.

(Dr. Gautam Chowdhary,J.)

May 7, 2026

S.Ali