Ramesh Kumari Agarwal and 2 Others vs State of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko. and Another

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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APPLICATION U/S 528 BNSS No. - 692 of 2026

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Ramesh Kumari Agarwal And 2 Others

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.....Applicant(s)

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Versus

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State Of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko. And Another .....Opposite Party(s) Counsel for Applicant(s) : Vivek Kumar Rai, Ajai Kumar, Satyendra Kumar Dwivedi 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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In view of the order going to be passed, as it is not adversely affecting the opposite party No. 2 in any way, issuance of notice to the opposite party No. 2 is hereby dispensed with.

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Heard Sri Vivek Kumar Rai, learned counsel for the petitioners, as also Sri Jas Karan Lal Maurya, learned A.G.A. for the State, and perused the record.

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The applicants have filed the present application with the following main prayer:

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"(i) Quash the summoning order dated 16.10.2025 passed by Learned Judicial Ist, Lucknow in Complaint Case No. 128578 of 2024 titled as Smt. Jaya Agarwal versus Ramesh kumari Agarwal and others against the petitioners without recording the statement of complainant under section 223 BNSS as well as other witnesses under section 225 BNSS and issued notice to the applicants in an illegal and arbitrary manneragainst the statutory provisions of 223 BNSS.

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(ii) Quash all further criminal proceedings of Complaint Case No. 128578 of 2024 titled as Smt. Jaya Agarwal versus Ramesh kumari Agarwal and others under section 210 BNSS pending in

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NA528 No. 692 of 2026

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the court of Learned Judicial Magistrate-Ist, Lucknow."

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It has been submitted by learned counsel for the petitioners that the complaint has been filed by the opposite party No. 2 and the petitioners have been issued notice vide order dated 16.10.2025, which is under challenge on the ground that pre-cognizance notice can be issued only after recording statements of the complainant as well as of the witnesses under Sections 223(1) and 225, B.N.S.S. respectively. The said recourse has not been adopted by the court below, therefore, the order is bad in the eyes of law. In support of his contention, the learned counsel has placed reliance on a judgment of Coordinate Bench of this Court in the case of Rakesh Kumar Chaturvedi v. State of U.P. & anr. (Neutral Citation No.- 2025:AHC-LKO:43788 (paras- 8 & 9) , which are quoted hereinbelow:

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"8. In view of above, after filing of complaint under Section 210 BNSS, the learned Magistrate has to first examine upon oath the complainant and the witnesses, if any, and the substance of such examination is to be reduced in writing, which shall be signed by the complainant and the witnesses and also by the Magistrate as per Section 223(1) of BNSS, thereafter, after considering the same, if he finds that there is no sufficient ground to proceed, he shall dismiss the complaint under Section 226 BNSS and if he finds that it can not be dismissed as such, he shall afford opportunity to the accused for which the notice of being heard shall be issued at that stage and only thereafter he would take cognizance after affording him opportunity of hearing. It is because, if the complaint is dismissed under Section 226 BNSS, the accused may not be harassed unnecessarily of appearing and the opportunity of hearing may not be a mere formality and it should be with material, which is required to be considered for taking cognizance. Thus, after recording of the statement under Section 223 BNSS and upon consideration that some sufficient ground is made out to proceed, learned Magistrate shall issue notice to the accused.

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NA528 No. 692 of 2026

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9. A co-ordinate Bench of the High Court of Karnataka has examined the legal position with regard to Section 223 BNSS and held that the Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard. The relevant paras are being extracted hereinbelow:-

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"8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

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9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard."

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Sri Jas Karan Lal Maurya, learned A.G.A. has opposed the prayer, but he could not dispute the submissions and the legal position cited by

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learned counsel for the petitioners.

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On a bare perusal of the order dated 16.10.2025 it is clear that the procedure, as mentioned above, has not been followed and without recording statements of the complainant and witnesses the notice for precognizance has been issued, which is not sustainable, therefore, the order dated 16.10.2025 is set aside , however, the petitioners shall be afforded opportunity at the pre-cognizance stage after following the due procedure in law by the Magistrate.

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With the above observations/directions, this petition is disposed of .

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(Brij Raj Singh,J.)

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February 19, 2026

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A.Nigam

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Digitally signed by :- ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Ramesh Kumari Agarwal and 2 Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko. and Another

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Ramesh Kumari Agarwal and 2 Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. Home Lko. and Another

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