Does Section 438 BNSS Permit a Complainant to File Revision Against a Summoning Order?

The advent of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the Code of Criminal Procedure, 1973 (CrPC), has reignited debates over the scope of revisional powers under the criminal justice system. One critical question concerns whether a complainant can challenge a summoning order through revision under Section 438 BNSS, corresponding to Section 397 CrPC.

The Patna High Court recently addressed this question in Laxmi Devi @ Suman Devi v. State of Bihar & Ors., Criminal Revision No. 907 of 2024, decided on 23 September 2025 by Justice Jitendra Kumar.

The case offers an instructive interpretation of “interlocutory orders” and the limits of the complainant’s right to seek revision under the new criminal procedure framework.

Background of the Case

Facts in Brief

The petitioner, Laxmi Devi, had filed Complaint Case No. 1038-C of 2023 before the Judicial Magistrate, 1st Class, Bagaha, West Champaran, against twenty-three accused persons, alleging offences under Sections 119, 143, 147, 166, 167, 207, 209, 217, 218, 219, 220, 228, 120B, 323, 448, 504 and 511 of the Indian Penal Code.

After an enquiry under Section 200 CrPC / Section 223 BNSS, the Magistrate took cognizance only against one accused, Pankaj Tiwari, for the offences punishable under Sections 323 and 506/34 IPC.

Aggrieved by the partial cognizance and limited summoning, the complainant filed a criminal revision before the Patna High Court under Section 438 BNSS (equivalent to Section 397 CrPC).

Issue for Determination

The principal question before the Court was:

• Whether a complainant can maintain a criminal revision under Section 438 BNSS (formerly Section 397 CrPC) against a summoning order that does not include all the accused or all the offences alleged in the complaint.

Arguments Advanced

Petitioner’s Contentions

• Improper Cognizance: The complainant argued that the Magistrate erred in taking cognizance only against one accused and for limited offences, ignoring ample material supporting the involvement of other accused persons.
• Jurisdictional Failure: It was submitted that the Magistrate’s failure to summon all accused amounted to a miscarriage of justice warranting revisional interference.
• Non-Interlocutory Order: The summoning order, being an adjudicatory step determining the rights of parties, was said not to be interlocutory and thus revisable.

State’s Objection

The State, represented by the Assistant Public Prosecutor, raised a preliminary objection to maintainability. It contended that:

• Under Section 438(2) BNSS / Section 397(2) CrPC, a revision against an interlocutory order is barred.
• A summoning order is interlocutory for the complainant because even if the revision were allowed, the trial would not terminate; the process would merely extend to more accused or additional offences.
• The proper remedy lies in invoking inherent jurisdiction under Section 528 BNSS (corresponding to Section 482 CrPC) or by moving an application under Section 358 BNSS (for additional accused) during trial.

Court’s Analysis

1. Scope of Section 438 BNSS

Section 438 BNSS, paralleling Section 397 CrPC, confers revisional powers upon the High Court and the Sessions Court but expressly bars revision against interlocutory orders under subsection (2). The term “interlocutory” remains undefined, prompting the Court to turn to established precedents under the old CrPC.

2. Judicial Interpretation of ‘Interlocutory Orders’

Justice Jitendra Kumar conducted an extensive review of Supreme Court jurisprudence:

(a) Amar Nath v. State of Haryana (1977) 4 SCC 137

The Court recalled that in Amar Nath, the Supreme Court held that “interlocutory order” in Section 397(2) must be understood in a restricted sense, excluding orders that “substantially affect the rights of the parties”. Summoning orders, though procedural, may affect rights but are not necessarily final.

(b) Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551

The Apex Court observed that orders rejecting a plea which, if accepted, would terminate the proceeding cannot be termed interlocutory. Hence, orders capable of concluding proceedings are intermediate rather than interlocutory.

(c) V. C. Shukla v. State through CBI (1980 Supp SCC 92)

Here, interlocutory orders were defined as those that decide some matter essential to the progress of the suit but not the final decision on the merits.

(d) K. K. Patel v. State of Gujarat (2000) 6 SCC 195

The test was refined:

• If upholding the objection of the party would terminate the entire proceeding, the order is not interlocutory.

(e) Girish Kumar Suneja v. CBI (2017) 14 SCC 809

The Supreme Court distinguished three categories of orders — final, intermediate, and interlocutory — holding that revisional jurisdiction extends to intermediate but not to interlocutory orders.

(f) Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2001) 7 SCC 401

The Court laid down a “safe test”:

• If acceptance of the revision petitioner’s contention would culminate the criminal proceeding, the order is not interlocutory.

3. Application to the Present Case

The Patna High Court applied these principles to the factual matrix.

• The impugned summoning order did not terminate proceedings; rather, it initiated them against one accused.
• Even if the complainant’s revision succeeded and additional accused were summoned, the trial would continue, not conclude.
• Therefore, the order was interlocutory for the complainant.
• However, for the accused, the same order would be intermediate, because setting aside a summoning order would end the proceedings against him.

The Court clarified this dual perspective, noting that the interlocutory or intermediate nature of an order depends on the party challenging it.

4. Remedy Available to the Complainant

Justice Kumar emphasised that though revision is barred, the complainant is not left remediless.

Appropriate courses include:

1. Invoking inherent powers under Section 528 BNSS/ Section 482 CrPC, if the order amounts to abuse of process or miscarriage of justice.
2. Seeking the summoning of additional accused under Section 358 BNSS/ Section 319 CrPC once evidence emerges during the trial.
3. Seeking alteration of charges under Section 239 BNSS/ Section 216 CrPC, if warranted by evidence.

Thus, the High Court dismissed the revision as not maintainable, while granting liberty to adopt appropriate remedies later.

Court’s Holding

Summarising its conclusions, the Patna High Court held:

1. A complainant cannot file a revision under Section 438 BNSS against a summoning order, as such an order is interlocutory for the complainant.
2. Only the accused may challenge a summoning order in revision, since quashing it would terminate proceedings against him, rendering it an intermediate order in his context.
3. The proper recourse for a complainant dissatisfied with limited cognizance or summoning is to invoke inherent powers under Section 528 BNSS or to move for inclusion of additional accused during trial under Section 358 BNSS.

Accordingly, the Court dismissed the revision petition as not maintainable.

Conclusion

Patna High Court’s judgment in Laxmi Devi @ Suman Devi v. State of Bihar & Ors. provides authoritative clarity on the revisional landscape under the BNSS. It conclusively holds that:

Section 438 BNSS does not permit a complainant to file a revision against a summoning order, as such an order is interlocutory in nature for the complainant.

This interpretation preserves the legislative intent behind restricting revisions, streamlines pre-trial procedures, and ensures that the criminal process proceeds without undue interference. At the same time, it safeguards justice through the availability of inherent powers and trial-stage remedies.

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