Allahabad High Court
Dr. Neha And 5 Others vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 30 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:67508
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 528 BNSS No. - 1611 of 2025
Dr. Neha And 5 Others
.....Applicant(s)
Versus
State Of U.P. Thru. Its Addl. Chief Secy. Home Deptt. Lko. And Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Pravin Kumar Verma, Vivek Kumar Verma
Counsel for Opposite Party(s)
:
G.A.
HON'BLE BRIJ RAJ SINGH, J. 1. Heard learned counsel for the applicants, learned AGA and perused the record.
2. This application has been filed with the following main relief:
"Wherefore, it is most respectfully prayed that this Hon'ble High Court may kindly be pleased to quash the impugned judgment and order dated 10.09.2025, passed by the learned Additional District and Sessions Judge/ Special Judge Prevention of Corruption Act, Court No.5, Lucknow in criminal revision no. 136/2025, Dr. Neha & others Vs. State of U.P. & another and the impugned order dated 14.02.2025, passed by the learned Chief Judicial Magistrate, Lucknow in Misc. Case No.475/2025, Girija Prasad Yadav Vs. Dr. Neha & others, contained as Annexure No. 1 and 2 to this petition."
3. It has been submitted by learned counsel for the applicants that the applicants have been summoned without recording the statement of complainant and the witnesses. Learned counsel submits that the court below has summoned the applicants on the complaint filed by opposite party no.2 vide order dated 14.2.2025. Against the said order, the applicants preferred a revision, which was also rejected on 10.9.2025. He has submitted that there is violation of Section 223 of BNSS, 2023, wherein it is provided as under:
"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 ion 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."
4. Learned counsel for the applicants submits that in the present case, no statement of complainant and witnesses has been recorded. Counsel for the applicants has relied upon a judgment of this Court in Application U/s 482 No.862 of 2025 (Rakesh Kumar Chaturvedi vs. State of U.P. and another), decided on 29.7.2025. He has submitted the the coordinate Bench of this Court has taken a view that without statement of the complainant and witnesses, issuance of summons against the accused is bad in law.
5. Learned AGA has opposed the case, but could not dispute the legal proposition that statement of complainant as well as witnesses are to be recorded in view of scheme as provided under Section 223 of BNSS, 2023. He also could not dispute the judgment of this Court in Rakesh Kumar Chaturvedi (supra).
6. Since the mandatory provision envisaged under Section 223 of BNSS, 2023 has not been complied with, therefore, I dispense with the issuance of notice against opposite party no.2 and remit the matter to the court below.
7. The application is allowed and the impugned orders dated 14.2.2025 and 10.9.2025 are quashed. The trial court is directed to record the statement of the complainant and witnesses and proceed accordingly in accordance with the observations made above.
(Brij Raj Singh,J.)
October 30, 2025
Sachin
