Mahendra Singh and 6 Others vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 51192 of 2025

Mahendra Singh …..Applicant(s) And 6 Others Versus State of U.P. and …..Opposite Party(s) Another Counsel for Applicant(s) : Hukum Singh, Puneet Bhadauria Counsel for Opposite Party(s) : G.A.

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Court No. - 77

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HON'BLE PRAVEEN KUMAR GIRI, J.

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Learned counsel for the applicants submits that he has filed the instant application under Section 528 BNSS with the relief which has been mentioned in the prayer clause of the application.

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The relief which has been mentioned in the application is delineated below:-

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“It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the Summoning order dated 20.08.2025 whereby, the Applicant Nos. 1, 2, 5, 6 and 7 have summoned under Section 190, 191(2, 115(2), 352, 351(2), 121(1) and 132 B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act and the Applicant Nos. 3 and 4 have been summoned under Sections 190, 191(2), 115(2), 352, 351(2), 121(1) and 132 and 74 of B.N.S. and 3(1) (Da), 3(1)(dha) and 3(2)(Va) of S.C/ST, Act passed by Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra as well as entire proceeding of Complaint Case No. 133/2024 (Smt. Suman Vs. Mahendra Singh and others) pending in the court of Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST, Act, Agra and or pass such other or

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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further order which may this Hon'ble may deem fit and proper in the facts and circumstances of the case, else the applicants shall suffer irreparable loss and injury.”

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Learned counsel for the applicants, Shri Puneet Bhadauria, submits that a First Information Report (F.I.R.) was lodged on 06.07.2024 against the applicants as Case Crime No. 114 of 2024 (State vs. Durgesh and others) under Sections 223, 191(2), 115(2), 352, 351(2) BNS, and investigation is still going on in the matter and no police report has been submitted yet before the Court of Magistrate. The relevant portion of the F.I.R. is being pasted below:

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“

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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Learned counsel for the applicants further submits that for the same cause of action, another person of the same family filed Complaint Case No. 133 of 2024 (Smt. Suman vs. Mahendra Singh and others) on 17.08.2024 with a prayer, which is being pasted below:

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“

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”

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Learned counsel for the applicants also submits that the learned Court of Special Judge, SC/ST Act, Agra recorded the statement of complainant Smt. Suman on 18.09.2024 under Section 223 BNSS and thereafter on 23.11.2024, the learned Special Judge, SC/ST Act, Agra recorded the statement of complainant witness No. 1 Shivendra Singh and on 08.01.2025 complainant witness No.2 Suman under Section 225 BNSS.

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Learned counsel for the applicants relying upon the entire ordersheet of Complaint Case No. 133 of 2024 contends that the complaint was filed on 17.08.2024 by Smt. Suman and her statement was recorded on 18.09.2024 and, therefore, the statement of complainant witness No. 1, Shivendra Singh was recorded on 23.11.2024 and on 08.01.2025, the statement of complainant witness No. 2, namely Suman , was recorded

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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and thereafter on 07.08.2025, the matter was fixed for summoning of the accused-applicants on 20.08.2025 but in the paragraph No.3 of the summoning order, the Special Judge recorded statements of complainant witness No.1 Shivendra Singh and complainant witness No.2 Dharmendra Singh . The aforesaid order-sheet is pasted below for ready reference:

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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”

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Learned counsel for the applicants further submits that on 20.08.2025, the learned Special Judge summoned the accusedapplicants, Mahendra Singh, Durgesh Singh, Suraj, Malikhan Singh and Sonu under Sections 190, 191(2), 115(2), 352, 351(2), 121(1), 132 BNS and 3(1)(da), 3(1)(dha), 3(2)(va) of the SC/ST Act and accusedapplicants, Bhola and Charan Singh under Sections 190, 191(2), 115(2), 352, 351(2), 121(1), 132, 74 BNS and 3(1)(da), 3(1)(dha), 3(2)(va) of the SC/ST Act. The relevant portion of the summoning order dated 20.08.2025 is being pasted below:

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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”

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Learned counsel for the applicants contends that Section 223, first proviso of BNSS categorically mentions that no Court shall take cognizance without providing opportunity of hearing to the proposed accused persons and in the present case, the learned Special Judge has taken cognizance as well as summoned the accused applicants without providing any opportunity of hearing to the accused/applicants against the provisions of law. The provisions of Section 223 BNSS are delineated below:

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“223. Examination of Complainant

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(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:

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Provided that no cognizance of an offence under this section shall be taken by the Magistrate without giving the accused an opportunity of being heard:

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Provided further that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—

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(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

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(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

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(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—

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

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(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.”

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Learned counsel for the applicants further submits that this Court, in paragraph No. 16 of the judgment of Prempal and 3 others vs. State of U.P. and Another; 2025:AHC:212689, has categorically held that before taking cognizance and summoning the accused persons under the Bharatiya Nagarik Suraksha Sanhita in a complaint case, the accused must be provided opportunity of hearing as per the law provided under Section 223(1), first proviso of BNSS. The paragraph No.16 is quoted below:

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“16. With effect from July 1, 2024 , the Judicial Magistrate is required to afford the accused an opportunity of hearing prior to the issuance of summons in a complaint case, in compliance with the First Proviso to Section 223(1) of the BNSS.”

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Learned counsel for the applicants also submits that taking cognizance and summoning the accused persons without providing opportunity of hearing violates the fundamental rights of the accused/applicants provided under Article 21 of the Constitution of India, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law.

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Learned counsel for the applicants further states that the learned Special Judge has not only abused the process of BNSS but has also violated Article 21 of the Constitution of India by not following the due procedure before summoning the accused-applicants.

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This Court directs Shri Pushkar Upadhyay, Special Judge, SC/ST Act/Additional Sessions Judge, Agra, I.D. No. UP 6086, to explain as to why he has not followed the procedure prescribed under law for taking cognizance and summoning an accused and maintained the order sheet in a casual manner which is not in consonance with the summoning order and thus violated the fundamental rights of the applicants-accused

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APPLICATION U/S 528 BNSS No. - 51192 of 2025

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and as to why action should not be taken against him and his conduct be not entered in his service record.

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Registrar (Compliance) is directed to seek explanation from Shri Pushkar Upadhyay, Special Judge, SC/ST Act/Additional Sessions Judge, Agra, I.D. No. UP 6086, by 13.01.2026.

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Put up this case as fresh on 13.01.2026 for further hearing .

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Until further orders of this Court, further proceedings of Complaint Case No. 133 of 2024 (Suman vs. Mahendra Singh and others) pending in the court of Additional District and Sessions Judge, Court No. 2/ Special Judge, SC/ST Act, Agra, shall remain stayed.

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(Praveen Kumar Giri,J.)

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January 5, 2026 K.Tiwari

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Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad

Mahendra Singh and 6 Others v. State of U.P. and Another

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Mahendra Singh and 6 Others v. State of U.P. and Another

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