Magistrate denied hearing accused at the stage of issue summon

This blog discusses whether an accused has a right to be heard before a Magistrate issues summons in a complaint case. It explains the legal position that, at the pre-summoning stage, the accused ordinarily has no right of audience once the court has taken cognizance and is considering issuance of process.

by Shivendra Pratap Singh | Apr 18, 2025 | Criminal Law

Magistrate denied hearing accused at the stage of issue summon when the matter has already been under cognisance of the court. In this situation my advocate moved a revision before the sessions court. But that revision is not accepted by the court. The case is filed on the false and frivolous facts. Complainant has manipulated that facts. He wants to take revenge from me by dragging me in a false case because I am planning to settle in London. If that criminal case remains pending, then I cannot get visa and go London. Please advise how to handle this issue.

Asked from: Andhra Pradesh

If you have prima facie evidence demonstrating that the complaint case against you is false and frivolous, you must wait until legal process (summon or warrant) is issued against you. Until then, as the accused, you have no right to appear in the proceedings.

You did not specify when the complaint was filed. If it was filed after July 1, 2024, the court was legally obligated under Section 223 of the BNSS to issue a notice to you (the proposed accused) at the cognizance stage, allowing you an opportunity to defend yourself before proceedings commenced. Section 223 provides that:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

If the magistrate failed to issue you a notice at the cognizance stage, you may file a petition in the High Court under Section 528 of the BNSS seeking quashing of the entire proceedings. If the allegations are bald and vague the court may quash the proceedings. This provision mandates that the accused must be heard before cognizance is taken. Violation of this requirement renders the proceedings invalid, and the High Court can quash the case, directing a de novo (fresh) proceeding.

In the new proceeding, you will have the opportunity to present evidence proving the complaint is based on false and frivolous allegations. If the court finds merit in your arguments, it may dismiss the complaint.

However, if the complaint was filed before July 1, 2024, you can approach the High Court under Section 528 BNSS only after the process (summon/warrant) is issued. Until then, you have no right to intervene in the matter.

Related: Can I seek quashing of FIR on expiry of limitation period?

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Tags: Complaint | Quashing

Shivendra Pratap Singh

Shivendra Pratap Singh

Advocate

Advocate Shivendra, practicing law since 2005, specializes in criminal and matrimonial cases, extensive litigatin experience before the High Court, Sessions court & Family Court. He established kanoonirai.com in 2014 to provide dependable and pragmatic legal support. Over the years, he has successfully assisted thousands of clients, making the platform a trusted resource for criminal and matrimonial dispute resolution in India.

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