The Apex Court in the case of Kushal Kumar Agarwal v. Directorate of Enforcement

Applicant :- Dolly Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kumar Dhananjay Counsel for Opposite Party :- G.A.,Sanjay Kumar Srivastava Hon'ble Sameer Jain,J.

1. Heard Sri Kumar Dhananjay, learned counsel for applicant, Sri Sanjay Kumar Srivastava, learned counsel for opposite party no.2 and Sri Pankaj Saxena, learned AGA for the State.

2. The instant application has been filed by the applicant with a prayer to quash the entire proceedings of Criminal Case No. 51623 of 2025 arising out of Case Crime No. 988 of 2024, under Sections 500, 501, 504, 120B IPC as well as summoning order dated 16.05.2025 passed by Chief Judicial Magistrate, Ghaziabad, Police Station Kavinagar, District Ghaziabad.

3. Learned counsel for applicant submits, FIR of the present case was lodged against applicant and co-accused Imran Khan on 06.10.2024 for offences under Sections 500, 501, 504, 120B IPC and 66 I.T. Act and during investigation Investigating Officer found that against applicant no offence under Section 66 I.T. Act is made out.

4. He further submits, charge-sheet against applicant has been filed for offences under Sections 500, 501, 504, 120B IPC. He further submits, as offence udner Sections 500, 501, 504, 120B IPC were non cognizable, therefore, in view of Section 2(1)(h) B.N.S.S. court concerned treated the police report as criminal complaint and issued summons to applicant on 16.05.2025.

5. He further submits, before issuing summons to the applicant court concerned did not provide any opportunity to applicant which was necessary in view of Section 223(1) B.N.S.S. and therefore order dated 16.05.2025 passed by the court concerned is illegal.

6. He next submits, provisions of 223(1) B.N.S.S. are mandatory and it provides valuable right to an accused to defend him before summoning in a complaint case. He further submits, therefore, impugned order dated 16.05.2025 is liable to be set aside.

7. Per contra, learned AGA as well as learned counsel for opposite party no.2 opposed the prayer and submitted that though as per Section 223(1) B.N.S.S. before issuing summons opportunity of hearing is necessary to an accused in complaint case but as in the instant matter by virtue of Section 2(1)(h) B.N.S.S. Investigating Officer who submitted the charge-sheet became the complainant, therefore, his statement was not necessary and therefore it was not mandatory to Magistrate concerned to issue summons or to give opportunity to the accused before summoning him and therefore court concerned did not commit any illegality and order dated 16.05.2025 cannot be said to be illegal.

8. They further submitted that therefore instant application filed by the applicant is devoid of merits and liable to be dismissed.

9. I have heard both the parties and perused the record of the case.

10. Only short question is involved in the instant application that if after investigation charge-sheet has been filed with regard to non cognizable offence and by virtue of Section 2(1)(h) B.N.S.S. court concerned treated the police report as criminal complaint then whether by virtue of section 223 B.N.S.S. it is necessary for the court to give opportunity of hearing to the accused before passing summoning order or not.

11. Before arriving any final conclusion, it will be apposite to reproduce Section 223 B.N.S.S. which read as:- "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) 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."

12. From the proviso clause of Section 223(1) B.N.S.S. it is apparent that in a complaint case the court concerned shall give an opportunity to an accused before passing the summoning order.

13. The proviso clause of Section 223(1) B.N.S.S. has been introduced first time in B.N.S.S. and the same was not in Criminal Procedure Code. The legislative intent to introduce such provisions was to provide safeguard to an accused in a case relates to criminal complaint and it provides a very valuable right to an accused which cannot be taken from him, therefore, proviso clause of Section 223(1) B.N.S.S. are mandatory.

14. However, in the present case it appears, public servant is the complainant by virtue of Section 2(1)(h) B.N.S.S. but merely on this ground it cannot be said that in such cases court concerned after ignoring mandatory provisions of Section 223(1) B.N.S.S. can issue summons to an accused without affording opportunity of hearing to him.

15. The Apex Court in the case of Kushal Kumar Agarwal Vs. Directorate of Enforcement 2025 SCC OnLine SC 1221 dealt with such issue in which the complaint was filed by E.D. and complainant was public servant and in this case the Apex Court after considering the provisions of Section 223(1) B.N.S.S. observed that as without affording opportunity to the accused summons have been issued, therefore, summoning order passed against the accused was illegal.

16. In case at hand, admittedly by virtue of Section 2(1)(h) B.N.S.S. court concerned treated the police report submitted against applicant as criminal complaint but in spite of that court concerned did not follow the mandatory provisions of Section 223(1) B.N.S.S. and without giving opportunity of hearing to the applicant issued summons against her, therefore, committed gross illegality, therefore, impugned order dated 16.05.2025 is not in accordance with law and is illegal.

17. Accordingly, impugned order dated 16.05.2025 is hereby quashed. The matter is remitted back to the court concerned with a direction that applicant shall appear before the court concerned through counsel within three weeks and thereafter court concerned shall pass appropriate orders in accordance with law after hearing both the parties as expeditiously as possible preferably within three weeks thereafter.

18. The instant applications stands disposed off accordingly. Order Date :- 19.8.2025 AK Pandey ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad

Applicant :- Dolly Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kumar Dhananjay Counsel for Opposite Party :- G.A.,Sanjay Kumar Srivastava Hon'ble Sameer Jain,J.

1. Heard Sri Kumar Dhananjay, learned counsel for applicant, Sri Sanjay Kumar Srivastava, learned counsel for opposite party no.2 and Sri Pankaj Saxena, learned AGA for the State.

2. The instant application has been filed by the applicant with a prayer to quash the entire proceedings of Criminal Case No. 51623 of 2025 arising out of Case Crime No. 988 of 2024, under Sections 500, 501, 504, 120B IPC as well as summoning order dated 16.05.2025 passed by Chief Judicial Magistrate, Ghaziabad, Police Station Kavinagar, District Ghaziabad.

3. Learned counsel for applicant submits, FIR of the present case was lodged against applicant and co-accused Imran Khan on 06.10.2024 for offences under Sections 500, 501, 504, 120B IPC and 66 I.T. Act and during investigation Investigating Officer found that against applicant no offence under Section 66 I.T. Act is made out.

4. He further submits, charge-sheet against applicant has been filed for offences under Sections 500, 501, 504, 120B IPC. He further submits, as offence udner Sections 500, 501, 504, 120B IPC were non cognizable, therefore, in view of Section 2(1)(h) B.N.S.S. court concerned treated the police report as criminal complaint and issued summons to applicant on 16.05.2025.

5. He further submits, before issuing summons to the applicant court concerned did not provide any opportunity to applicant which was necessary in view of Section 223(1) B.N.S.S. and therefore order dated 16.05.2025 passed by the court concerned is illegal.

6. He next submits, provisions of 223(1) B.N.S.S. are mandatory and it provides valuable right to an accused to defend him before summoning in a complaint case. He further submits, therefore, impugned order dated 16.05.2025 is liable to be set aside.

7. Per contra, learned AGA as well as learned counsel for opposite party no.2 opposed the prayer and submitted that though as per Section 223(1) B.N.S.S. before issuing summons opportunity of hearing is necessary to an accused in complaint case but as in the instant matter by virtue of Section 2(1)(h) B.N.S.S. Investigating Officer who submitted the charge-sheet became the complainant, therefore, his statement was not necessary and therefore it was not mandatory to Magistrate concerned to issue summons or to give opportunity to the accused before summoning him and therefore court concerned did not commit any illegality and order dated 16.05.2025 cannot be said to be illegal.

8. They further submitted that therefore instant application filed by the applicant is devoid of merits and liable to be dismissed.

9. I have heard both the parties and perused the record of the case.

10. Only short question is involved in the instant application that if after investigation charge-sheet has been filed with regard to non cognizable offence and by virtue of Section 2(1)(h) B.N.S.S. court concerned treated the police report as criminal complaint then whether by virtue of section 223 B.N.S.S. it is necessary for the court to give opportunity of hearing to the accused before passing summoning order or not.

11. Before arriving any final conclusion, it will be apposite to reproduce Section 223 B.N.S.S. which read as:- "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) 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."

12. From the proviso clause of Section 223(1) B.N.S.S. it is apparent that in a complaint case the court concerned shall give an opportunity to an accused before passing the summoning order.

13. The proviso clause of Section 223(1) B.N.S.S. has been introduced first time in B.N.S.S. and the same was not in Criminal Procedure Code. The legislative intent to introduce such provisions was to provide safeguard to an accused in a case relates to criminal complaint and it provides a very valuable right to an accused which cannot be taken from him, therefore, proviso clause of Section 223(1) B.N.S.S. are mandatory.

14. However, in the present case it appears, public servant is the complainant by virtue of Section 2(1)(h) B.N.S.S. but merely on this ground it cannot be said that in such cases court concerned after ignoring mandatory provisions of Section 223(1) B.N.S.S. can issue summons to an accused without affording opportunity of hearing to him.

15. The Apex Court in the case of Kushal Kumar Agarwal Vs. Directorate of Enforcement 2025 SCC OnLine SC 1221 dealt with such issue in which the complaint was filed by E.D. and complainant was public servant and in this case the Apex Court after considering the provisions of Section 223(1) B.N.S.S. observed that as without affording opportunity to the accused summons have been issued, therefore, summoning order passed against the accused was illegal.

16. In case at hand, admittedly by virtue of Section 2(1)(h) B.N.S.S. court concerned treated the police report submitted against applicant as criminal complaint but in spite of that court concerned did not follow the mandatory provisions of Section 223(1) B.N.S.S. and without giving opportunity of hearing to the applicant issued summons against her, therefore, committed gross illegality, therefore, impugned order dated 16.05.2025 is not in accordance with law and is illegal.

17. Accordingly, impugned order dated 16.05.2025 is hereby quashed. The matter is remitted back to the court concerned with a direction that applicant shall appear before the court concerned through counsel within three weeks and thereafter court concerned shall pass appropriate orders in accordance with law after hearing both the parties as expeditiously as possible preferably within three weeks thereafter.

18. The instant applications stands disposed off accordingly. Order Date :- 19.8.2025 AK Pandey ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad