Allahabad High Court

PHOOL KUMARI AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 6 May 2026
Bench: SAURABH SRIVASTAVA

Holding

The charge‑sheet under the cited sections is to be treated as a complaint, and the magistrate’s cognizance order is set aside.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a cognizance and summoning order dated 11‑12‑2025, which had directed them to stand trial for offences under Sections 115(2), 352 and 351(2) of the BNSS. They contended that these offences are non‑cognizable and, per the explanation to Section 2(1)(h) of the BNSS, the charge‑sheet filed by the investigating officer should be treated as a complaint, not as a police case. The State did not dispute these submissions. The Court examined the definition of "complaint" and the explanatory clause, concluding that the charge‑sheet indeed falls within the meaning of a complaint for non‑cognizable offences. 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 still proceed as a complaint if required by law.

Issues considered

Whether offences under Sections 115(2), 352 and 351(2) of the BNSS are non‑cognizable.
Whether a charge‑sheet filed by a police officer for a non‑cognizable offence is deemed a complaint under Section 2(1)(h) of the BNSS.
Whether the magistrate erred in taking cognizance of the matter as a State case.

Legislation cited

Bihar Narcotic Substances Act, 2023 — s. 115(2), 2(1)(h), 351(2), 352

Subjects

non‑cognizable offence
complaint vs police report
Section 528 application
quashing cognizance
charge‑sheet as complaint
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 14375 of 2026

Phool Kumari And 3 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Nisha Mishra, Vinod Shankar Tripathi
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
cognizance/summoning order dated 11.12.2025 by which the learned
Magistrate summon the applicants for facing of trial of Case Crime No.353
of 2024, under Sections 115(2), 352, 351(2) of BNS, 2023, Police Station
Khuthan, District Jaunpur and further quash the entire proceedings of Case
No.1701 of 2025, arising out of Case Crime No.353 of 2024, under Sections
115(2), 352, 351(2) BNS, P.S. Khuthan, District Jaunpur.

3. Learned counsel for applicants has made only one submission before the
Court that offences under Sections 115(2), 352, 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:-

"2. Definitions.- (1) In this Sanhita, unless the context otherwise requires,-
NA528 No. 14375 of 2026
2

(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), 352, 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 11.12.2025 passed by
learned Additional Chief Judicial Magistrate-IV, Court No.15, Jaunpur
against the applicants in Case No.1701 of 2025 arising out of Case Crime
No.353 of 2024, under Sections 115(2), 352, 351(2) of BNS, 2023, Police
Station Khuthan, District Jaunpur, 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

Continue reading with your account

Checking your session…