Failure to Give Accused Pre-Cognizance Hearing Renders Summoning Order Invalid: Allahabad High Court

The Allahabad High Court has set aside a summoning order issued against five individuals for alleged offences under Sections 498A, 406, 323, 504, 506 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, 1961, on the ground that they were not given a mandatory opportunity of being heard at the pre-cognizance stage, as required under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Justice Vikas Budhwar passed the order on May 27, 2025, while allowing an application under Section 528 BNSS challenging the validity of the summoning order passed by the Judicial Magistrate/Civil Judge (J.D.), Chitrakoot.

Background

A complaint had been filed alleging domestic violence and dowry-related offences against five family members. Based on the complaint and statements recorded under the BNSS, the Magistrate issued a summoning order dated April 19, 2025, for the alleged offences.

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The applicants challenged this order under Section 528 of BNSS on procedural grounds, contending that it was passed without following the mandatory requirements under Section 223 BNSS.

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Arguments

The applicants’ counsel did not contest the allegations at this stage but argued that the summoning order was procedurally flawed. They submitted that the first proviso to Section 223 BNSS, which came into force on July 1, 2024, mandates that an opportunity of hearing must be given to the accused before the Magistrate takes cognizance of the complaint.

The State counsel did not dispute the timeline—that the complaint was filed on October 24, 2024, and the summoning order was passed on April 19, 2025—and agreed that the BNSS provision was applicable.

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Court’s Analysis

The Court referred to the language of Section 223(1) BNSS, which states:

“Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”

Justice Budhwar emphasized that the Magistrate must comply with this procedural safeguard. The Court cited a coordinate bench decision in Prateek Agrawal v. State of U.P. and a ruling by the Karnataka High Court in Sri Basanagouda R. Patil v. Sri Shivananda S. Patil, which held that the accused must be issued notice after the sworn statements of the complainant and witnesses are recorded, and must be heard before cognizance is taken.

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The Court held that the Magistrate had failed to provide this mandatory opportunity, rendering the summoning order unsustainable.

Decision

The Court passed the following directions:

  1. The summoning order dated 19.04.2025 is quashed.
  2. The matter is remitted to the Magistrate for fresh consideration in accordance with Section 223 BNSS.
  3. A certified copy of the High Court’s order is to be submitted before the Magistrate by June 13, 2025.

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