AJAY SINHA AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 14289 of 2026

Ajay Sinha And 2 Others
                                                              .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)      : Girjesh Kumar Srivastava,              Kumar
                                Ashutosh Srivastava
Counsel for Opposite Party(s) : G.A.

Court No. - 77
                  HON'BLE SAURABH SRIVASTAVA, J.

1. Heard Sri Krishna Kant Gupta, holding brief of Sri Kumar Ashutosh
Srivastava, learned counsel for the applicants and learned AGA for the State.

2. The present application has been preferred for seeking quashing of
summoning order dated 19.2.2026 passed by learned Chief Judicial
Magistrate, Ghazipur as well as entire proceeding of Case no. 3005 of 2026
(State vs. Ajay Sinha and others) arising out of Case Crime no. 292 of 2025
under sections 115(2), 352, 351(3) BNS, PS- Kotwali, District Ghazipur.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 115(2), 351(2), 352 BNS are non-
cognizable and in view of the explanation to Section 2(1)(h) BNSS, the
charge sheet filed by the Investigating Officer concerned cannot proceed as a
police case and the same is liable to be proceeded with as a complaint case.
In support of his submission, learned counsel of applicant has placed
reliance upon the judgments passed in the case of Shakila Bano and others
Vs. State of U.P. and another, 2008 (61) ACC 636.

4. Although, learned AGA opposed the prayer sought through the instant
application but did not dispute the submissions so made by learned counsel
for applicant.

5. Since only legal arguments have been raised at the behest of applicants,
process to issue notice to opposite party no. 2 is hereby dispensed with.
                                                                                                       NA528 No. 14289 of 2026
                                                                             2


                                    6. Before proceeding further, the relevant provisions of Section 2(1)(h)
                                    BNSS are being reproduced for ready reference as under:-

                                              "2. Definitions.-In this Sanhita, unless the context otherwise requires,-

                                              (h) "complaint" means any allegation made orally or in writing to a
                                              Magistrate, with a view to his taking action under this Sanhita, that some
                                              person, whether known or unknown, has committed an offence, but does
                                              not include a police report.

                                              Explanation.- A report made by a police officer in a case which discloses,
                                              after investigation, the commission of a non- cognizable offence shall be
                                              deemed to be a complaint; and the police officer by whom such report is
                                              made shall be deemed to be the complainant."

                                    7. In view of the above explanation, charge sheet submitted by the concerned
                                    Investigating Officer in the present case under Sections 115(2), 351(2), 352
                                    BNS shall be treated as complaint and it is to be decided as complaint and
                                    the learned Magistrate fell in legal error by taking cognizance as State case
                                    and the orders passed by him is, therefore, liable to be set aside.

                                    8. In view thereof, order dated 19.2.2026 passed by learned Chief Judicial
                                    Magistrate, Ghazipur summoning the applicants on the basis of chargesheet
                                    submitted by concerned Investigating Officer under Sections 115(2), 351(2),
                                    352 BNS treating the same as State case, is set aside.

                                    9. Accordingly, the instant application is partly allowed.

                                    10. However, it is made clear that this order shall not preclude the learned
                                    court concerned to proceed with the case treating it as complaint case, if
                                    required, in accordance with law.



                                                                                                   (Saurabh Srivastava,J.)
                                    May 7, 2026
                                    Shaswat




Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad