Allahabad High Court

SURENDRA AND ANOTHERversusSTATE OF U.P. AND ANOTHER

Decided: 6 May 2026
Bench: SAURABH SRIVASTAVA

Holding

Since Sections 115(2) and 351(2) BNS are non‑cognizable, the charge‑sheet under the explanation to Section 2(1)h BNSS must be treated as a complaint, and the magistrate’s cognizance order as a State case is set aside.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a cognizance order dated 06.01.2026 passed by a Judicial Magistrate in Meerut, which had treated a case under Sections 115(2) and 351(2) BNS as a State case. They argued that these offences are non‑cognizable and, per the explanation to Section 2(1)h BNSS, the charge‑sheet filed by the investigating officer should be deemed a complaint, not a police report. The State opposed the prayer but did not contest the submissions. The Court examined the definition of "complaint" and the relevant explanation, concluding that the charge‑sheet must indeed be treated as a complaint. Consequently, the magistrate’s order taking cognizance as a State case was held to be a legal error and was set aside. The application was partly allowed, with the clarification that the case may proceed as a complaint if required.

Issues considered

Whether offences under Sections 115(2) and 351(2) BNS are non‑cognizable.
Whether a charge‑sheet filed by a police officer in respect of a non‑cognizable offence is to be treated as a complaint under the explanation to Section 2(1)h BNSS.
Whether the magistrate erred in taking cognizance of the matter as a State case.

Legislation cited

Bihar Negotiable Sanhita (BNSS) — s. 115(2), 2(1)h, 351(2)

Subjects

non‑cognizable offence
complaint vs police report
Section 528 application
quashing of cognizance order
BNSS
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 14374 of 2026

Surendra And Another
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Akshara Rai, Sujeet Kumar Rai
Counsel for Opposite Party(s) : G.A.

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

1. Heard learned counsel for the applicants and learned AGA for the State.

2. The present application has been preferred for seeking quashing of order
dated 06.01.2026 passed by learned Judicial Magistrate/ Additional Civil
Judge (Junior Division), Court No.2, Meerut in Criminal Case No.875 of
2026, under Sections 115(2), 351(2) of BNS, Police Station Mahila Thana,
District Meerut, arising out of Case Crime No.83 of 2025.

3. Learned counsel for applicants has made only one submission before the
Court that offences under Sections 115(2), 351(2) 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 applicants has placed reliance upon the
judgments passed in the case of Murli and others Vs. State of U.P. and
another, 2008 (61) ACC 54; Virendra Singh and others Vs. State of U.P.
and others, 2002 (45) ACC 609 and 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 applicants.

5. Before proceeding further, the relevant provisions of Section 2(1)h BNSS
are being reproduced for ready reference as under:-
NA528 No. 14374 of 2026
2

"2. Definitions.- (1) 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."

6. In view of the above explanation, charge sheet submitted by the concerned
Investigating Officer in the present case under Sections 115(2), 351(2) 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.

7. Since the legal issue has been raised by learned counsel for the applicants
and as such process to issue notice to opposite party no.2 is hereby dispensed
with.

8. In view thereof, cognizance/summoning order dated 06.01.2026 passed by
learned learned Judicial Magistrate/ Additional Civil Judge (Junior
Division), Court No.2, Meerut in Criminal Case No.875 of 2026, arising out
of Case Crime No.83 of 2025 under Sections 115(2), 351(2) of BNS, Police
Station Mahila Thana, District Meerut, 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.

May 7, 2026
Ashish/-

(Saurabh Srivastava,J.)

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

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