Accused cannot challenge summoning order after completing trial: HC

12/07/2026

SRINAGAR, Jul 11: The High Court of Jammu & Kashmir and Ladakh has held that an accused who participates in the entire trial without raising any objection cannot subsequently challenge the summoning order after the evidence of both sides has concluded.
Justice Shahzad Azeem dismissed a petition filed by Aijaz Ahmad Bhat challenging an order dated November 12, 2012, passed by the Chief Judicial Magistrate, Shopian, taking cognisance of a cheque dishonour complaint involving Rs. 2.10 lakh under Section 138 of the Negotiable Instruments Act.
The complaint had been filed by Nisar Ahmad Malik. The Magistrate had taken cognisance and issued process after recording the statements of the complainant and a witness.
The petitioner approached the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, contending that since he resided outside the territorial jurisdiction of the Magistrate, an inquiry under Section 202 of the Code of Criminal Procedure (now Section 225 of the BNSS) was mandatory before issuance of process.
Counsel for the petitioner, Advocate Faisal Javied, relied on the Supreme Court's judgment in In Re: Expeditious Trial of Cases under Section 138 of the Negotiable Instruments Act, 1881 to contend that such an inquiry is compulsory where the accused resides beyond the court's territorial jurisdiction.
The High Court agreed that Section 202 CrPC ordinarily mandates such an inquiry to protect persons residing outside the court's jurisdiction from being subjected to frivolous or vexatious complaints.
However, Justice Azeem held that the petitioner had participated in the proceedings without protest, cross-examined prosecution witnesses and also led evidence in his defence. The evidence of both sides had concluded and the matter had been listed for final arguments.
Observing that the objection had been raised at a highly belated stage, the court said:
"At this highly belated stage, when the matter is awaiting its final outcome, the clock cannot be set back to the pre-cognizance stage."
The court held that the petitioner ought to have raised the objection either when the process was issued or at the time of his first appearance before the trial court.
It observed that by actively participating in the trial, the petitioner had effectively waived his objection regarding the alleged non-compliance with Section 202 CrPC, and the plea appeared to be an afterthought.
The High Court further noted that the petitioner had failed to demonstrate any prejudice or failure of justice arising from the alleged procedural lapse. Referring to Section 465 of the CrPC, corresponding to Section 511 of the BNSS, the court held that no order could be set aside merely because of a procedural irregularity unless it had resulted in a failure of justice.
Holding that the alleged irregularity, if any, was curable and did not warrant interference under Section 528 of the BNSS, the High Court dismissed the petition along with the connected application.
The court, however, clarified that the judgment was confined to the peculiar facts of the case and did not dilute the mandatory requirement of conducting an inquiry under Section 202 CrPC or Section 225 of the BNSS when such an objection is raised at the appropriate stage.

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