SMT VIDYA DEVIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 15131 of 2026

Smt Vidya Devi
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)      : Kamlesh        Kumar     Dwivedi,     Saurabh
                                Dwivedi
Counsel for Opposite Party(s) : G.A.

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

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

2. The present application has been preferred for seeking quashing of
chargesheet dated 28.04.2025 and cognizance order dated 01.01.2026 along
with entire proceedings of Criminal Case No.2901 of 2026 (State Vs. Vidya
Devi), arising out of Case Crime No.150 of 2025, under Section 352, 351(2)
of BNS, P.S. Jagdishpura, District Agra, pending in the court of learned
Additional Chief Judicial Magistrate, Court No.1, Agra.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Section 352, 351(2) of BNS are non-cognizable
and in view of the explanation to Section 2(1)(h) of 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
judgment passed in the case of Shakila Bano and others Vs. State of U.P.
and another, 2008 (61) ACC 636.

4. Since the argument as advanced on behalf of learned counsel for
applicant, is based on legal issue, no notice is required to be issued to
opposite party no.2.

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

6. Before proceeding further, the relevant provisions of Section 2(1)(h) of
BNSS are being reproduced for ready reference as under:-
                                                                                            NA528 No. 15131 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."

                                    7. In view of the above explanation, charge sheet submitted by the concerned
                                    Investigating Officer in the present case under Section 352, 351(2) of BNS,
                                    should have been treated as complaint and it is to be decided as complaint
                                    but 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 01.01.2026 passed in Criminal Case No.2901
                                    of 2026 (State Vs. Vidya Devi), arising out of Case Crime No.150 of 2025,
                                    summoning the applicant on the basis of chargesheet submitted by
                                    concerned Investigating Officer under Section 352, 351(2) of 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.

                                    May 6, 2026
                                    Vivek Kr.
                                                                                        (Saurabh Srivastava,J.)




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