The Punjab and Haryana High Court has set aside three orders passed by a Ludhiana court in a prosecution under the Central Goods and Services Tax Act, 2017, holding that the trial court could not proceed to record pre-charge evidence without first passing a formal order summoning the accused.

The bench of Justice N.S. Shekhawat observed that the Chief Judicial Magistrate had not passed any formal order taking cognizance and summoning the petitioners as accused. Despite this, the trial court proceeded with recording pre-charge evidence in the GST complaint.

The bench set aside the order and directed the trial court to follow the procedure prescribed under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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The petitioner challenged various orders passed by the Chief Judicial Magistrate, Ludhiana, in a criminal complaint filed on January 3, 2026.

The complaint alleged an offence under Section 132(1)(c) of the CGST Act, punishable under Section 132(1)(i). Section 132(1)(c) deals with availing input tax credit by using invoices or bills without the actual supply of goods or services, in violation of the GST law.

The petitioners argued that the trial court had never passed a formal summoning order against them. In the absence of such an order, it could not legally proceed to the next stage and record pre-charge evidence.

They further submitted that even before taking cognizance of the complaint, the Magistrate was required to comply with the procedure under Section 223 of the BNSS, including the statutory requirement of providing the accused an opportunity of being heard.

The petitioners relied principally on the Supreme Court’s decision in Parvinder Singh v. Directorate of Enforcement, in which the apex court examined the first proviso to Section 223(1) of the BNSS.

In that decision, the Supreme Court held that the proviso prohibits a Magistrate from taking cognizance of an offence without first giving the accused an opportunity of being heard. It characterised the requirement as substantive rather than merely procedural because it confers a right upon the accused connected with the guarantee of a fair trial under Article 21 of the Constitution.

The Supreme Court had also ruled that the word “shall” appearing in the proviso makes the requirement mandatory. Cognizance taken without complying with the hearing requirement would, therefore, be void from the outset.

The petitioners also placed reliance on the Supreme Court’s rulings in Kushal Kumar Agarwal v. Directorate of Enforcement and Radhika Agarwal v. Union of India.

The Directorate General of GST Intelligence did not dispute the petitioners’ factual assertion that the trial court had not passed a formal cognizance order. Its counsel acknowledged that the procedure prescribed under the BNSS had not been followed by the Chief Judicial Magistrate.

The department, however, pointed out that serious allegations had been made against both petitioners in the GST complaint.

After hearing the parties and examining the record, the High Court found that no formal order had been passed summoning the petitioners as accused. It held that the trial court had wrongly proceeded to record pre-charge evidence without first passing the necessary order.

“In the present case no formal order has been passed by the trial Court for summoning the petitioners as an accused, and without passing such order, the trial Court has wrongly proceeded to record the pre-charge evidence,” the High Court observed.

Accordingly, the High Court set aside the orders dated February 13, April 21 and July 8, 2026, passed by the Chief Judicial Magistrate.

The High Court clarified that the trial court must follow the mandate of Section 223 of the BNSS as well as the law laid down by the Supreme Court in the judgments cited before it.

The parties were directed to appear through their counsel before the trial court on the date already fixed, October 12, 2026. The petition was disposed of in these terms.

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