Atiqur Rahaman And Another vs State Of U.P. And Another
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Allahabad High Court

Atiqur Rahaman And Another vs State Of U.P. And Another on 8 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:134874
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 27962 of 2025
 

 
Applicant :- Atiqur Rahaman and another
 
Opposite Party :- State of U.P. and another
 
Counsel for Applicant :- Mohammad Ruman, Rahul Singh, Ravindra Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Ravi Jha holding brief of Sri Rahul Singh, learned counsel for the applicants, who are two in number, and Sri S.K. Singh, the learned A.G.A. for the State.

2. This Court on 04.08.2025, proceeded to pass the following orders: -

"1. Contention of the learned counsel for the applicants is that though the complaint was lodged on 7.10.2024 and the applicants came to be summoned on 5.11.2024, under Sections 59(i) and 51 of the Food Safety and Standards Act, 2006 but there has been no compliance of the provisions contained under first proviso to Section 223 of the BNSS of 2023.

2. Reliance has been placed upon the judgement in Prateek Agarwal vs. State of U.P. and another Application U/S 482 No.10390 of 2024 decided on 26.11.2024.

3. Sri J.B. Singh, learned AGA seeks time to obtain instructions.

4. Put up this case on 8.8.2025 as fresh at 2.00 p.m."

3. Learned A.G.A. has produced before this Court the instructions dated 07.08.2025 of the Food Safety Officer, which is taken on record and is marked as Appendix 'A'.

4. Learned A.G.A. submits that he does not propose to file any affidavit, as he is armed and equipped with the instructions and the case may be decided on the basis of the documents available on record and instructions.

5. Learned counsel for the applicant also submits that he does not propose to file any affidavit.

6. With the consent of the parties, the present application is being decided at fresh stage.

7. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire proceedings of Case No. 3412 of 2024 (State Vs Ataur Rahaman) under section 51 and 59(i) of the Food Safety and Standards Act, 2006, Police Station- Shahganj, District- Prayagraj, as well as Summoning Order dated 05.11.2024 passed by the court of Addl. Chief Judicial Magistrate, Court No. 2, Prayagraj passed in the aforesaid case.

8. The case of the applicant is that a complaint stood lodged by Food Safety Officer on 07.10.2024, which came to be registered as Complaint Case No. 3412 of 2024, State vs. Ataur Rahaman under Sections 26(2)(i), (ii), 59(i) and 51 of the Food Safety and Standards Act, 2006. The Court of A.C.J.M. Court No.2, Prayagraj proceeded to summon the applicant under Sections 59(i) and 51 of the Food Safety and Standards Act, 2006 on 05.11.2024.

9. Questioning the summoning order, the applicant has filed the present application.

10. Learned counsel for the applicant has submitted that summoning order cannot be sustained, particularly when as per the own saying of the O.P. No.2, the complaint stood lodged on 07.10.2024 post enforcement of the BNSS 2023. Thus the provisions contained under first proviso to Section 223(1) of the BNSS would come into play which obligates the Magistrate to put to notice and accord opportunity of hearing at a pre-cognizance stage. He submits that the complaint stood preferred on 07.10.2024 and on 05.11.2024, the applicant came to be summoned. He seeks to rely upon the judgment of the coordinate Bench of this Court in Application u/s 482 No. 10390 of 2024, Prateek Agarwal Vs. State of U.P. and another decided on 26.11.2024.

11. Learned A.G.A. on the other hand submits that the offences are made out, but he could not dispute the fact that the applicant was not put to notice and accorded opportunity at pre-cognizance stage, which is a condition precedent before proceeding as per the first proviso to Section 223(1) of the BNSS. He submits that the order be set aside and the matter be remitted back to the court below to pass a fresh order.

12. I have heard the submissions so made across the Bar and perused the records carefully.

13. Apparently, the complaint stood lodged on 07.10.2024 by the O.P. No.2 for the offences under Sections 26(2)(i), (ii), 59(i) and 51 of the Food Safety and Standards Act, 2006. In the order-sheet, the order dated 07.10.2024 reads as under: -

"?? ????? ??????? ??????? ?? ??? ???????/???o ????????? ????? ????? ?? ??????? ?????? ?????? ???? ???? ???? ??????? ??? ???????? ?????? ???? ?? ?????? ???? ???5/11/24 ?? ??? ??"

14. Thereafter on 05.11.2024, the summoning order has been passed: -

"05.11.2024

???????? ???????? ????????? ????? ??????? ??????? ????????? ???? ????? ?????? ?????? ????? ??????? ?? ???? ???? 2006 ??? ?????????? ????? ????? ? ?????? ????? ?? ??????? ?????? ???? ???????? ?? ??? ???? ??? ?? ?? 24.03.2024 ?? ??? 01.30 ??? ??? ?? ????? 136/1? ???????? ??? ????? ??? ???? ??? ????? ???-3 ???? ????? ???? ????????? ?? ????? ????? ?????????? ????? ????? ???? ???? ??????????? ?? ???????? ???? ?? ???????? ????? ????? ?? ???? ????? ???? ????? ?????? ?????, ????, ????? ??? ?? ????????? ? ?????? ???? ?? ?????? ?? ???? ?? ???? ???? ??? ?? ????? ???? ?????? ????? ????? ???????? ??????????? ????????? ???? ???? ???? ????? ?? ???????? ?? ?????????? ?????? ? ????????? ???? ?? ?????? ?? ????? ??????? ??? ???? ??????? 2006 ?? ???? 26(2) (i), (ii) ?? ??????? ???? ?? ?? ?? ????? ??????? ???? ??????? ?? ???? 59(1),51 ?? ???????? ??????? ????? ???

?????? ??? ???? ?????? ???? ???? ??? ??? ??? ??? ???? ?? ???? 200 ?????????? ?? ???????? ??????? ?? ????? ???? ???? ???

??????? ????? ??????? ??????? ?????? ???? 202 ?????????? ?? ??????? ?? ??? ??? ????? ?????? ?? ???? ?? ?????, ??????? 5?, ???? ????????, ??????? ??????, ?????-6 ????? ?? ???? ?? ???? ?????, ????? ????????????? ?? ???? ??? ???? 46 (4) ?? ?????, ????? ???????? ??????? ????? ??????? ??????? ?? ????????? ????, ?????? ??????? ?????? ??????? ???? ??? ?????? ????? ??? ???? ??????? ????? ?????? ???? ?? ????? / ???????? ???? / ??? ???????? ???? ?? ????? ?????? ??????? ?????? ????? ??? ???, ?? ???????? ?? ?????? ??? ???? ????? ????????? ?? ?????? ?? ?????????? ?????? ????? ??? ???????? ???? 59 (1), 51 ????? ??????? ???? ?? ???????? ??? ???? ???? ????? ???

????

?????????? ????? ????? ??? ?????? ????? ??????? ???? ?? ?????? 59(1),51 ????? ??????? ??????? ?? ????? ??? ????? ????? ?????? 09.01.2025 ???? ??? ???? ???? ??? ??????? ?????? ???? ?????? ???????? ???? ?? ????? ?????? ???? ????? ????? ?????? ???? ????"

15. A perusal of the order-sheet reveals that the complaint stood preferred on 07.10.2024 and the next date fixed was 05.11.2024 and on 05.11.2024, without putting to notice the applicant-accused, which is mandatory as per the provisions under first proviso under Sub-Section (1) of Section 223 of the BNSS. In Prateek Agarwal (supra), it was observed as under: -

"8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:-

"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.

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.

10. Therefore, the procedural drill would be this way:

A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

12. Swinging back to the facts of the case the concerned Court has passed the following order:

"This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023.

Issue notice to the Accused as per proviso to section 223 of BNSS, 2023.

For hearing.

Call on 13.08.2024."

The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order.

13. For the aforesaid reasons the following:

ORDER

(i) Criminal Petition is allowed.

(ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed.

(iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order.

(iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order.

Consequently, I.A.No.2 of 2024 stands disposed."

16. Since the aforesaid exercise relatable to putting to the notice the applicant accused before taking cognizance is lacking and nothing is forthcoming from the summoning order thus the summoning order cannot be sustained and is liable to be set aside.

17. Accordingly, the application is being decided in the following terms:-

(a) The order dated 05.11.2022 summoning the applicant under Section 51 and 59(i) of the Food Safety and Standards Act, 2006 is set aside.

(b) Matter stands remitted back to the court below to pass fresh order strictly in accordance with law.

(c) For facilitation and early disposal the certified copy of the order be submitted before the court below by 21.08.2025.

18. While dictating the order, the Court found that though the applicants, who are two in number had marked and arraigned as accused nos. 1 and 2, but so far as accused nos. 3, 4 and 5 are concerned, they have been described as date of offence, place of offence and the sections.

19. The court below is to also before proceeding to pass fresh order is to also bestow its consideration on the same.

20. With the above observations, the application stands disposed of.

Order Date :- 8.8.2025

N.S.Rathour

(Vikas Budhwar, J)