Prem Kumar Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Allahabad HC13 Jan 2026NA528/35/2026

Case brief

AI extract

What is this about?

Section 223 BNSS 2023 — opportunity of hearing to accused before issuance of summons is mandatory — summoning order set aside for non-compliance where order sheet showed no notice to accused — quashing under Section 528 BNSS — remand to Magistrate for fresh decision within four weeks — complaint case (cheque of Rs.10 lakhs; business dispute over old-vehicle sale and purchase) — Application U/S 528 BNSS No. 35 of 2026 — Brij Raj Singh, J. — Allahabad High Court, Lucknow Bench — January 13, 2026.

What did the court decide?

Application allowed; impugned summoning order dated 5.8.2025 set aside; matter remitted to the Magistrate concerned for a fresh decision in accordance with law in compliance with Section 223 of BNSS, 2023, within four weeks. ¶¶22

Prem Kumar Rawat vs State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others — Allahabad HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the summoning order dated 5.8.2025 is liable to be quashed because the trial court did not give the accused an opportunity of hearing before issuing summons, as mandatorily required under Section 223 of BNSS, 2023.

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Court's answer

Section 223 of BNSS, 2023 contains a mandatory provision that the accused must be given an opportunity to be heard prior to issuance of summons.

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Ratio / Principle

On the facts, the order sheet did not indicate that the Magistrate had issued any notice to the accused prior to passing the summoning order.

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Key takeaways

Since the mandatory statutory requirement of hearing under Section 223 of BNSS, 2023 was not complied with, the impugned summoning order cannot survive.ratio¶¶21
The matter is remitted to the Magistrate concerned to take a fresh decision in accordance with law, following the mandatory provision of Section 223 of BNSS, 2023, within four weeks.ratio¶¶25

Detailed headnote1 paragraphs

Allahabad High Court (Lucknow Bench), Lucknow — Application U/S 528 BNSS No. 35 of 2026, decided January 13, 2026 (Brij Raj Singh, J.): Quashing of summoning order dated 5.8.2025 passed by opposite party no.2 in Case no.33005 of 2025 (Mohd. Nusrat Jamal Vs. Prem Kumar Rawat), pending before the Additional Judicial Magistrate-III, Lucknow — Held, Section 223 of BNSS, 2023 mandatorily requires that the accused be given an opportunity to be heard prior to issuance of summons — The order sheet did not indicate that any notice was issued to the accused before the summoning order was passed — Mandatory statutory requirement not complied with; the impugned order cannot survive — Summoning order set aside; matter remitted to the Magistrate concerned for a fresh decision in accordance with law within four weeks — Application allowed. (Facts, per the applicant: business of sale/purchase of old vehicles as Jai Balaji Auto Sales; complainant invested Rs.5 lacs as capital; Rs.25,000 per month paid as interest; Rs.10 lacs allegedly paid towards the demanded double amount; complaint based on a cheque of Rs.10 lacs given as surety.)

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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APPLICATION U/S 528 BNSS No. - 35 of 2026

Prem Kumar Rawat

.....Applicant(s)

Versus

State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others .....Opposite Party(s) Counsel for Applicant(s) : Katyayan Mishra, Mahendra Kumar Verma, Santosh Kumar Pandey Counsel for Opposite Party(s) : G.A.

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Court No. - 16

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HON'BLE BRIJ RAJ SINGH, J.

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Supplementary affidavit filed today is taken on record.

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Heard learned counsel for the applicant and learned AGA for the State.

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Since a legal issue is involved in this case and this application is going to be decided finally, therefore, issuance of notice to opposite party no.3 is dispensed with.

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This application has been filed seeking quashing of the impugned summoning order dated 5.8.2025 passed by opposite party no.2 in Case no.33005 of 2025 (Mohd. Nusrat Jamal Vs. Prem Kumar Rawat), pending in the court of Additional Judicial Magistrate-III, Lucknow.

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It is the case of the applicant that he started a business of sale and purchase of old vehicles in the name and title of Jai Balaji Auto Sales in the month of June, 2022 and had worked till July, 2025 and as per oral agreement, the complainant/opposite party no.3 invested Rs.5 lacs as capital money and against the said money, he was charging Rs.25000/per month as interest. It has been submitted by learned counsel for the applicant that as per oral agreement, the applicant used to pay Rs.25000/per month to the complainant or his son, namely Arham Ahmad.

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It is further submitted that the applicant has paid Rs.5 lacs till 2024

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NA528 No. 35 of 2026

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which is a considerable amount. It is also noteworthy to mention here that opposite party no.3 told the applicant that if he wanted to close the business, then he had to return the double money i.e. Rs.10 lacs. The applicant was compelled to accept the proposal made by opposite party no.3, and as per his proposal, he assured him that in three or four installments, he will pay Rs.10 lacs, and in continuation of events, the applicant has paid Rs.10 lacs to opposite party no.3. It is further submitted that despite the said amount paid to opposite party no.3, he has mounted pressure on the applicant that if he does not pay the money, he will use the cheque which was given by him as surety. The opposite party no.3 filed complaint bearing Case no.33005 of 2025, wherein he has stated that Rs.10 lacs was given to the applicant for his business against which, a cheque of Rs.10 lacs was given by the applicant. After statement of the complainant under Section 223 of BNSS, 2023, summon has been issued.

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Learned counsel for the applicant has stated in Para 3 of the supplementary affidavit that prior to passing of the summoning order dated 5.8.2025, the trial court did not issue any notice for providing opportunity of hearing to the applicant, which is mandatory under Section 223 of BNSS, 2023.

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Learned AGA has opposed the case of the applicant and has submitted that after recording the statement, summon has been issued. However, he could not dispute the legal position as envisaged under Section 223 of BNSS, 2023.

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This Court finds that the argument advanced by learned counsel for the applicant has some force for the simple reason that there is mandatory provision under Section 223 of BNSS, 2023 that the accused must be given opportunity to be heard prior to issuance of summons. In the present case, the order sheet does not indicate that the Magistrate had issued any notice to the accused prior to passing the summoning order.

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Since the mandatory statutory requirement has not been complied with, therefore, the order impugned cannot survive.

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Accordingly, the application is allowed and the impugned summoning order dated 5.8.2025 is set aside. The matter is remitted to the court of the

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NA528 No. 35 of 2026

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Magistrate concerned to take a fresh decision in the matter in accordance with law by following the mandatory provision of Section 223 of BNSS, 2023, within a period of four weeks from today.

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(Brij Raj Singh,J.)

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January 13, 2026

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Sachin

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Digitally signed by :- SACHIN MEHROTRA High Court of Judicature at Allahabad, Lucknow Bench

Prem Kumar Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Prem Kumar Rawat v. State of U.P. Thru. Prin. Secy. Home Lko. and 2 Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

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