How to Challenge a Summoning Order in a Complaint Case

What a summoning order in a complaint case actually is

A complaint case begins when a person goes directly to a Magistrate instead of the police. Under Section 223 of the Bharatiya Nagarik Suraksha Sanhita 2023 (old Section 200 CrPC), the Magistrate examines the complainant and any witnesses on oath. Under Section 225 (old Section 202), he may postpone issuing process and inquire into the case himself or ask the police to investigate, and he must do so where the accused lives outside his jurisdiction. If he finds sufficient ground to proceed, he issues process under Section 227 (old Section 204). That order is the summoning order.

The summoning order is often a single paragraph: 'Perused the complaint and the pre-summoning evidence. Prima facie offence under Sections 316 and 318 BNS is made out against accused nos. 1 to 4. Issue summons for the next date.' It looks routine. It is not. In Pepsi Foods Ltd. v. Special Judicial Magistrate (1998), the Supreme Court said that summoning a person in a criminal case is a serious matter, and the order must show that the Magistrate applied his mind to the facts and the law. Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) repeated that a summoning order cannot be passed mechanically.

This is different from a police case. Where the police file a chargesheet, the court takes cognizance on the police report and summons the accused on that basis. In a complaint case, there has been no independent investigation unless the Magistrate ordered one, and the whole case rests on the complainant's version. That is one reason higher courts look closely at complaint case summons, and why a well-founded challenge has a real chance.

Anyone summoned can challenge a summoning order. A company, its directors, family members of a husband in a matrimonial dispute, a journalist in a defamation case: each can challenge the order as it applies to them.

The provisions you will see in a summons quashing petition

Why the Magistrate cannot simply take the summons back

People are often advised to 'apply to the Magistrate to drop the case'. In most situations that does not work. In Adalat Prasad v. Rooplal Jindal (2004), the Supreme Court held that a Magistrate has no power to review or recall a summoning order, because the Code does not give him one. If the summoned person thinks the order is wrong, his remedy is to approach a higher court. Subramanium Sethuraman v. State of Maharashtra (2004) added that in summons cases, an application to 'discharge' the accused after appearance on the ground that the summons should not have issued is not maintainable.

There is one exception that matters in warrant cases instituted on a complaint. After the prosecution evidence before charge, the accused can seek discharge if no case is made out. Our guide on seeking discharge before charges are framed explains that stage. But discharge comes months or years later, after you have attended many dates. A challenge to the summoning order is the way to stop the case at the door.

So the choice is not between the Magistrate and the High Court. It is between a revision and a Section 528 petition, and between the Sessions Court and the High Court for the revision. That choice is discussed below.

The hearing before cognizance under Section 223 BNSS

The most significant change brought by the BNSS for complaint cases is the first proviso to Section 223(1): the Magistrate shall not take cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Under the old Code, the accused had no say until after summons were issued. Now he is entitled to be heard at the threshold.

In May 2026, in Parvinder Singh v. Directorate of Enforcement, the Supreme Court held this proviso to be mandatory and treated it as part of the right to life and liberty. Cognizance taken without the hearing was held void from the start, and the accused did not have to show that he suffered prejudice. The case arose from a money-laundering complaint, but the reasoning rests on the general complaint procedure. The Court also held that what matters is the date on which cognizance was taken: where the complaint was filed before 1 July 2024 but cognizance was taken after, the hearing was still required. An earlier ruling in Kushal Kumar Agarwal v. Directorate of Enforcement (2025) had taken a similar line.

For anyone summoned in a complaint case where cognizance was taken after 1 July 2024, the first question is therefore simple: were you given notice and heard before the Magistrate took cognizance? If not, that ground alone may be enough to have the order set aside, usually with a direction to the Magistrate to hear you and decide afresh. That does not end the case, but it gives you a full hearing on the merits before the court decides whether to proceed.

Where cognizance was taken before 1 July 2024, the old CrPC applies and there was no such right. The challenge then rests on the other grounds below.

Grounds on which courts set aside a summoning order

• No offence on the face of the complaint. Taking every allegation as true, the facts do not make out the offence named; this is the first of the categories in State of Haryana v. Bhajan Lal (1992).
• A civil dispute dressed as a crime. A failed contract, an unpaid invoice or a partnership quarrel, without dishonest intention at the start, is not cheating or breach of trust.
• No inquiry where the accused lives outside the area. If you live outside the Magistrate's jurisdiction and no Section 225 inquiry was held, the order is open to challenge.
• No hearing before cognizance. For cognizance after 1 July 2024, the Section 223 proviso hearing is mandatory.
• No specific role for directors or family members. Vague allegations against everyone in the company or the family do not justify summoning each of them.
• A mechanical order. An order that only records 'prima facie case made out' without reference to the material may not show application of mind.
• Legal bars. Absence of sanction under Section 218 BNSS (old Section 197 CrPC) for a public servant, a complaint barred by limitation under Section 514 BNSS (old Section 468 CrPC), or a defamation complaint by someone who is not the aggrieved person under Section 222 BNSS (old Section 199 CrPC).
• Abuse of process. A complaint filed to pressure someone in a civil, matrimonial or business dispute, or a repeat complaint on the same facts after an earlier one was dismissed.

Directors, partners and relatives named in the complaint

Complainants often name everyone: the company, every director, the accounts manager, the managing director's wife. The law does not allow that by default. In Maksud Saiyed v. State of Gujarat (2008) and Sunil Bharti Mittal v. CBI (2015), the Supreme Court held that the Indian Penal Code, and now the BNS, has no general rule of vicarious liability. A director can be summoned for an offence committed by a company only if the complaint shows his personal role or the statute itself makes him liable.

Some statutes do create that liability. Section 141 of the Negotiable Instruments Act, for cheque bounce, makes persons in charge of and responsible for the conduct of the company's business liable, but even there the complaint must say so specifically, and independent or non-executive directors stand on a different footing. Outside such statutes, a director summoned only because of his designation has a strong ground for challenge.

Family members in matrimonial complaints are in a similar position. Courts have repeatedly cautioned against summoning distant relatives on general allegations. If your name appears only in a list, with no act attributed to you, the summoning order as against you may not survive.

When Advocate B.K. Singh reads a complaint against a company, he marks every paragraph that names his client and asks one question of each: what did this person do? If the answer is 'nothing specific', that becomes the centre of the petition.

Revision or Section 528: which court and which route

If the Magistrate is in a Delhi district court, the revision can go to the Sessions Court of that district or to the Delhi High Court, which have concurrent revisional jurisdiction. In practice, revisions against summoning orders are commonly filed before the Sessions Court first, because it is closer, quicker to list and has a lower volume. Once you file revision before the Sessions Court, you cannot ordinarily file a second revision before the High Court on the same order, though the High Court's Section 528 power remains available in exceptional cases.

A Section 528 petition goes directly to the Delhi High Court. It is useful where the complaint itself should be quashed, not just the summoning order; where there are connected issues, such as several complaints on the same facts; where an important legal question is involved; or where the 90-day period for revision has passed. The High Court may still ask why the Sessions Court was not approached, so the petition should explain the choice. Our guide on Section 528 BNSS explains this jurisdiction, and the service page on revision against summoning, charge or interim orders covers how these cases are filed.

The Delhi High Court is the right forum only if the summoning court is in Delhi. A complaint pending before a Gurugram Magistrate goes to the Punjab and Haryana High Court; one in Noida or Ghaziabad goes to the Allahabad High Court. If you want the case moved from one state to another, that needs a transfer petition before the Supreme Court.

For a general picture of revisions beyond summoning orders, see our guide on what a criminal revision is and when to file it.

Step by step: how to challenge a summoning order

These steps assume the summoning order was passed by a Magistrate in Delhi.

1. Get certified copies

   Apply for certified copies of the complaint, its documents, the pre-summoning evidence (statements of the complainant and witnesses), any Section 225 inquiry report and the summoning order. The order sheets are also visible on the eCourts portal, but filing needs certified copies.

2. Note the key dates

   Write down the date of filing of the complaint, the date of cognizance and the date of the summoning order. These decide whether the Section 223 hearing applied and if you are still within 90 days for revision.

3. Identify the grounds

   Read the complaint as if every word were true and ask whether the offence is made out. Check whether you live outside the court's area, whether you were heard before cognizance and whether any role is attributed to you personally.

4. Choose revision or Section 528

   Decide, with advice, whether to go to the Sessions Court in revision or to the Delhi High Court. Once a revision is filed in one court, a second revision in the other is ordinarily barred.

5. File with an application for stay

   The petition should seek setting aside of the summoning order and, as interim relief, a stay of further proceedings or at least exemption from personal appearance before the trial court until the challenge is decided.

6. Keep the trial court in the loop

   Before the next date in the trial court, file an application informing it of the pending challenge and seeking exemption, or appear in person. Do not simply stay away.

7. Argue on the record

   At the hearing, the court will look at the complaint and the order, not new evidence. Keep arguments to what the record shows: missing ingredients, missing role, missing inquiry or missing hearing.

Time limits, typical time and cost

Documents to collect

Stopping the trial court while the challenge is pending

Filing a revision or a Section 528 petition does not, by itself, stop the case below. The trial court will continue to list the matter, and if you do not appear, it can issue bailable and then non-bailable warrants. That is why the petition should always include an application for interim relief.

The usual interim orders are a stay of further proceedings before the trial court, or a direction that the petitioner's personal appearance be exempted until the next date in the higher court. Courts are more willing to grant a stay where the legal ground is clear on the face of the record, such as a missing Section 225 inquiry or a missing Section 223 hearing. Where the challenge turns on disputed facts, exemption from appearance is more common. The service page on stay of summons or trial proceedings explains how these applications are argued.

Interim orders are often extended from date to date while the main petition waits. Make sure the extension is recorded each time, and give the trial court a copy of every order. If an interim order lapses because a date was missed, the trial court is entitled to proceed.

Should you appear before the trial court in the meantime?

In most cases, yes, unless the higher court has stayed proceedings or exempted you. Appearing on summons is not an admission of anything, and in summons cases bail is usually a formality on appearance. Staying away is far riskier: warrants follow, and if they cannot be served, a proclamation. Our guide on what happens when you are declared a proclaimed offender explains where that road leads.

If you live far away or abroad, apply for exemption from personal appearance through your lawyer. Magistrates can dispense with personal attendance and allow appearance through counsel in suitable cases, and higher courts often direct this as part of interim relief.

Advocate B.K. Singh's practical advice is to file the exemption application on the first date even if the revision has not yet been heard, attaching a copy of the filed revision. It tells the trial court you are taking the case seriously, and Magistrates are generally willing to wait a date or two for the higher court to act.

Cheque bounce, defamation and cheating complaints: what differs

Cheque bounce complaints under Section 138 of the Negotiable Instruments Act make up a large part of complaint cases in Delhi courts. Challenges usually focus on whether the statutory notice was valid, whether the complaint was filed in time, and whether directors were properly made liable under Section 141. Our network site on cheque bounce cases covers those cases in depth.

Defamation complaints under Section 356 BNS (old Sections 499 and 500 IPC) have their own features: only the 'person aggrieved' can complain, there are recognised exceptions such as truth for the public good and fair comment, and online posts raise questions of authorship and jurisdiction. Our guide on quashing criminal defamation over social media posts goes into those.

Cheating and criminal breach of trust complaints under Sections 318 and 316 BNS are where the 'civil dispute dressed as a crime' argument is most often made. The Supreme Court has said many times that every breach of contract is not cheating; there must be dishonest intention at the time of the promise. Where a complaint describes a commercial deal that went wrong, that is often the ground on which to challenge a summoning order.

If you are the complainant defending the summoning order

The complainant is a necessary party to a revision or Section 528 petition against a summoning order and is entitled to notice. If you filed the complaint, take the notice seriously and appear, because the higher court is deciding whether your case continues.

Your best defence is the record you built before summoning. A complaint that sets out each accused's role, a pre-summoning statement that supports it, documents that show dishonesty from the start, and a summoning order that refers to them, are hard to set aside. If the Magistrate skipped the Section 223 hearing or the Section 225 inquiry, the higher court will usually send the matter back rather than end it, and you can prepare better for the fresh hearing.

Where the court finds the dispute is essentially civil, consider whether a recovery suit, arbitration or commercial suit would serve you better. Pursuing a criminal complaint that is quashed costs time and leaves you where you began.

Mistakes to avoid

• Asking the Magistrate to recall the summons. He generally has no power to do it, and the time spent can push you past the 90-day revision period.
• Ignoring the trial court dates. A pending challenge without a stay does not protect you from warrants.
• Arguing facts the record does not show. At this stage courts read the complaint and the order; defences that need trial are usually left for trial.
• Filing two revisions. Going to the Sessions Court and then to the High Court in revision on the same order is ordinarily barred.
• Missing the Section 223 point. If cognizance came after 1 July 2024 without a hearing, that is often the strongest ground available.
• Challenging for every accused together without separate grounds. Each person's role is different; a petition that treats everyone alike may fail for those with the best case.

What to do this week

Apply for certified copies of the complaint, the pre-summoning evidence and the summoning order. Note the date of cognizance and count 90 days from the summoning order. Check the next date before the trial court and arrange to appear or to seek exemption. Collect the contracts, emails and company records that show your side.

Then decide on the forum: revision before the Sessions Court, revision before the High Court or a Section 528 petition. The service page on criminal revision in the Delhi High Court explains what each involves, and our guide on the first hearing of a quashing petition tells you what to expect on the first date.

If you would like Advocate B.K. Singh to read your complaint and summoning order and tell you whether to challenge it, or want updates on how courts are applying Section 223 BNSS, contact Advocate B.K. Singh here.