Ritesh Tibrewala vs State Of U.P. And Another
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Allahabad High Court

Ritesh Tibrewala vs State Of U.P. And Another on 10 September, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:160053
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
APPLICATION U/S 528 BNSS No. - 32296 of 2025   
 
   Ritesh Tibrewala    
 
  .....Applicant(s)   
 
 Versus  
 
   State of U.P. and Another    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Rahul Chaudhary   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A.   
 
     
 
 Court No. - 75
 
   
 
 HON'BLE VIKAS BUDHWAR, J.      
 
1. Heard Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri Rahul Chaudhary and Shri Vibhor Jain, learned counsel for the applicant and Sri Sudhir Kumar Chandraul, learned AGA for the State. 
 
2. This application under Section 528 BNSS has been filed by the applicant to quash the order dated 12.11.2024 passed by Chief Judicial Magistrate, Meerut, whereby the applicant has been summoned under provisions of Equal Remuneration Act, 1976 in Criminal Case No.46504 of 2024 (State Vs. Ritesh) under Section 8 &10 of the Equal Remuneration Act, 1976 read with Rule 6 of Equal Remuneration Rule, 1976. 
 
3. This Court on 04.09.2025 has sought instructions/ permitted to learend AGA to file its reply. Today instructions have been forwarded by Shri Sudhir Kumar Chandraul under the signature of the Inspector Labour Enforcement, Meerut dated 09.09.2025 and according to him, they are self-sufficient and he does not propose to file any affidavit, thus, with the consent of the parties, the application is being decided at the fresh stage.  
 
4. Learned counsel for the applicant submits that the applicant is a Director of Wall-Mart India Private Limited, a company being established under the provisions of the Companies Act, 2013. On 31.10.2023, a joint inspection team which comprised of the opposite party no. 2 along-with the others visited the Meerut store for inspection and sought furnishing of various registers/ records which were maintained. The allegation of the applicant is that with the advent of modern technology instead of physical, a copy of the records they are being stored in data and the applicant post inspection on 31.10.2023 assured that the opposite party no. 2 records will be promptly produced. An inspection note came to be served upon the applicant dated October 31, 2023 citing violations of the provisions of various labour legislation including the Act in question. A notice is stated to have issued on the said date which came to be replied November 24, 2023 enclosing the records, however, on 18.09.2024 a complaint came to be lodged by Inspector of Labour Enforcement Officer, Meerut office under the provisions of Section 8 of the Equal Remuneration Act, 1976 read with Rule 6 of the Equal Remuneration Rules, 1976 and the said complaint came to be registered on 12.11.2024 while summoning the applicant under the provisions of Section 8 & 10 of Equal Remuneration Act, 1976 read with Rule 6 of Equal Remuneration Rules, 1976. 
 
 
 
5. Questioning the said order, the applicant has been filed the present application.  
 
6. Learned counsel for the applicant has submitted that from the perusal of the complaint itself would reveal that no offences are made out against the applicant, however, the core and crucial question which will fall for consideration is the fact that the complaint stood lodged on 18.09.2024, post enforcement of the BNSS w.e.f. 01.07.2024 now first proviso to sub-section (1) of Section 223 BNSS mandates the Magistrate to put to notice the accused before at pre-cognizance stage. He further submits that the summoning order is non-speaking and unreasoned and even it does not recite the case of the complainant less to say about recording of any prima facie satisfaction of the penal sections. In order to bolster the said submission, reliance has also been placed upon the judgment in the case of M/s. JM Laboratories vs State of Andhra Pradesh 2025 INSC 127 and also support the submissions with regard to adherence of the mandatory provisions under first proviso to sub-section (1) of Section 223 BNSS. He seeks to rely upon the judgment in Kushal Kumar Agarwal v. Directorate of Enforcement in Criminal Appeal No. 2749 of 2025, decided on 09.05.2025 and the coordinate Bench of this Court in Application U/S 482 No. 10390 of 2024; Prateek Agarwal v. State of U.P. and another. He, however, submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.  
 
7. Learned AGA on the other hand submits that though offences are made out from the bare look of the complaint as the applicant has violated the provisions of Act and Rules in question, however, he could not dispute the fact that the mandatory requirement of issuing notice and according opportunity to the applicant- accused at pre-cognizance stage had not been done in term of first proviso to sub-section (1) of Section 223 BNSS and further the summoning order is cryptic and it does not as per the mandate of Hon'ble Apex in Prateek Agarwal (supra) and Kushal Kumar Agarwal (supra). However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.  
 
8. I have heard learned counsel for the parties and gone through the records carefully.  
 
9. Apparently, the complaint stood lodged on 18.09.2024 by the opposite party no. 2 against the applicant i.e. post enforcement of BNSS, 2023 and as per the complete order-sheet of the complaint case in question, the applicant came to be summoned on 12.11.2024 without putting him to notice at the pre-cognizance stage. 
 
 
 
10. Section 223 of B.N.S.S. reads 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 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:  
 
(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 -  
 
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and  
 
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."  
 
11. A perusal of first proviso to sub-section (1) of Section 223 BNSS would reveal that before taking cognizance, the Court has put to notice the accused and to hear at pre-cognizance stage, the said issue is no more res integra as in Kushal Kumar Agarwal (supra), the Hon'ble Apex Court held as under: 
 
 "In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside."
 
 
 
12. Further in Prateek Kumar Agarwal (supra), this court held 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."

10. In view of the above facts and discussions, present application is allowed. The impugned order dated 15.10.2024 is in violation of the provision of Section 223 of B.N.S.S., and therefore, the same is hereby set aside."

13. Even otherwise, the summoning order dated 12.11.2024 reads as under:

"??? ??? ???? ???????? ?? ?????? ???? ???, ?????????? ???? ???? ??? ???? ??????? ??? ???????? ?????? 21.12.2024 ?? ?????? ????? ?????? ??? ??? ???"

14. A bare look of the summoning order dated 12.11.2024 would reveal that the same is not as per the mandate of the Hon'ble Apex Court in the case of JM Laboratories (supra), particularly, when the same is cryptic, non-speaking and even it does not recite the case of the complainant, less to say about the record any satisfaction with regard to the attractions/ penal sections.

15. The Hon'ble Apex Court in the case of JM Laboratories (supra), para 9 whereof is quoted hereinunder.-

"9. In the present case also, no reasons even for the namesake have been assigned by the learned Magistrate. The summoning order is totally a non-speaking one. We therefore find that in light of the view taken by us in criminal appeal arising out of SLP (Crl.) No. 2345 of 2024 titled "INOX Air Products Limited Now Known as INOX Air Products Private Limited and Another v. The State of Andhra Pradesh", and the legal position as has been laid down by this Court in a catena of judgments including in the cases of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, Sunil Bharti Mittal Vs. Central Central Bureau of Investigation, Mehmood U Rehman Vs. Khazir Mohammad Tunda and others and Krishna Lal Chawla and others Vs. State of Uttar Pradesh and another, the present appeal deserves to be allowed."

16. Since the summoning order is cryptic, non-speaking and unreasoned and it does not disclose the issue relatable to putting the applicant to notice in view of the provisions contained under first proviso to sub-section (1) of Section 223 of the BNSS, thus this Court has no option to set aside the summoning order, accordingly, the application decided in the following manner:

(a) The order dated 12.11.2024 passed by Chief Judicial Magistrate, Meerut in Criminal Case No.46504 of 2024 (State Vs. Ritesh) under Section 8 &10 of the Equal Remuneration Act, 1976 read with Rule 6 of Equal Remuneration Rule, 1976 is set aside.

(b). The matter stands remitted back to pass fresh order strictly in accordance with law.

17. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 09.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.

18. Needless to point out that the Court has not adjudicated upon the merits of the case.

19. Accordingly, the application stands disposed of.

20. Instructions have been filed today is taken on record and marked as Appendix-A.

(Vikas Budhwar,J.)

September 10, 2025

A. Prajapati