M/S Quantum and Another v. State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 38053 of 2025 Court No. - 75 HON'BLE VIKAS BUDHWAR, J.

¶1Vakalatnama has been filed today on behalf of Ms. Somya Chaturvedi (A/S 0764/16), counsel for opposite party no.2, is taken on record.

¶2Heard Ms. Katyayini, learned counsel for the applicants and Sri J.B. Singh, learned AGA for the State as well as Ms. Somya Chaturvedi, counsel for the opposite party no. 2.

¶3This application under Section 528 BNSS has been filed by the applicant to quash/ set-aside the summoning order dated 26.03.2025, Complaint No. 45461 of 2025 and the entire proceedings in Case No. 45461 of 2025 (Regional Officer, U.P. Pollution Control Board vs. M/s Quantum International Pvt. Ltd. & Anr.) arising out of Complaint No. 45461 of 2025 under Section 14(2) of the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021 ("CAQM Act") pending before the learned Chief Judicial Magistrate, GautamBuddha Nagar.

¶4Today Ms. Somya Chaturvedi has filed her memo and according to her, she has full instructions in the matter and according to her, they are self-sufficient and she does not propose to file any affidavit, thus, with the consent of the parties, the application is being decided at the fresh stage.

¶5The case of the applicants is that a complaint stood lodged by the opposite party no. 2 on being Complaint Case No. 45461/2025, (UPPCB Vs. M/S Quantum International Pvt. Ltd.) for the offences under Section 14 (2) of the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021. Post lodging of the complaint, the applicants Versus Counsel for Applicant(s) : Katyayini Counsel for Opposite Party(s) : G.A. M/S Quantum And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) herein came to be summoned on 26.03.2025 in the Complaint Case No. 45461/2025, (UPPCB Vs. M/S Quantum International Pvt. Ltd.) by the Court of Chief Judicial Magistrate, Gautambuddh Nagar. Thereafter, the bailable warrants came to be issued on 28.08.2025.

¶6Questioning the said order, the leading applications came to be preferred.

¶7Learned counsel for the applicant has submitted that from the perusal of the complaint itself would reveal that the complaint stood preferred, 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. Submission is that the applicants have not been put to notice and thus there is a clear infraction of the said provision and reference has been made to para-28 of the application in order to buttress the said submission. Reliance has been placed upon the coordinate Bench of this Court in Application U/S 482 No. 10390 of 2024; Prateek Agarwal v. State of U.P. and another. She 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. He, however, submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

¶8Ms. Somya Chaturvedi, counsel for the opposite party no. 2 as well as learned AGA on the other hand submits that though offences are made out from the bare look of the complaint and the case becomes triable in nature but they could not be 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 M/s. JM Laboratories (supra). However, they submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

¶9I have heard learned counsel for the parties and gone through the records carefully.

¶10The summoning order dated 26.03.2025 reads as under:- "आज यह पिरवाद मय शपथप्ऴ पिरवादी की ओर से ्षारा अिधव्वा ्ऺस्तुत िकया गया। पिरवाद का अवलोकन िकया। पिरवाद दजर् रिजस्टर हो। पिरवादी ्षारा यह पिरवाद अपने पदीय कतर््ि ों के िनवार्हन में दािखल िकया गया है। अतः बयान अं०धारा- 223 व 225 बी०एन०एस०एस० की आवश्कता नहीं है। पिरवाद के अवलोकन से अिभयु्व के िवरू्ध ्ऺथम दृ्िया अपराधं का होना पाया जाता है। अिभयु्व के िवरू्ध अं०धारा - 14 (2) रा्ि्रीय राजधानी ्षे्ऴ और आस-पास के ्षे्ऴ ों में वायु गुणव्ता ्ऺबंधन आयोग अिधिनयम 2021 में सं्ञान िलया जाता है। अिभयु्व के िवरु्ध सम्मन जारी हो। पिरवाद वास्ते सुनवाई िदनांक-6/5/25 को पेश हो। "

¶11A 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 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.

¶9Relevant 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.

¶9To 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.

¶10Therefore, 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.

¶11The 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.

¶12Swinging 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.

¶13For 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."

¶10In 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."

¶13The Hon'ble Apex Court in the case of M/s J.M. 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."

¶14A close reading of the summoning order would reveal that no exercise as mandated under first proviso to Section 223 of the BNSS has been resorted too. Since the applicant at a pre-cognizance stage being an accused was to be put to notice and was to be heard and the said exercise is lacking, thus the orders impugned cannot be sustained, accordingly, the applications decided in the following manner:

(a) The summoning orders dated 26.03.2025 passed by Chief Judicial Magistrate Gautam Buddha Nagar in Complaint Case No. 45461/2025, ( UPPCB Vs. M/S Quantum International Pvt. Ltd.) is set aside.

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

¶15For facilitating early disposal, the party shall furnish the certified copy of the orders before the court below by 17.10.2025 and the court below shall proceed to decide the said proceeding with most expedition.

¶16Needless to point out that the Court has not adjudicated upon the merits of the case.

¶17Accordingly, the applications stand disposed of. September 26, 2025 N.S.Rathour (Vikas Budhwar,J.) High Court of Judicature at Allahabad