Allahabad High Court
SUMIT AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge sheet relating to non‑cognizable offences under the BNSS must be treated as a complaint, and the magistrate’s cognizance order is legally erroneous and therefore set aside.
Summary
The applicants filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 14‑04‑2025 and a cognizance order dated 30‑07‑2025 in a case involving alleged offences under Sections 115(2), 351(3) and 352 of the BNSS. The sole argument advanced was that these offences are non‑cognizable and, per the explanation to Section 2(1)(h) of the BNSS, a police‑prepared charge sheet in such matters must be treated as a complaint, not as a police report, and therefore the magistrate erred in taking cognizance as a State case. The State opposed the prayer but did not contest the legal submissions. Relying on the precedent set in Shakila Bano v. State of U.P., the Court held that the charge sheet should indeed be dealt with as a complaint and set aside the cognizance order. Consequently, the application was partly allowed, quashing the earlier order, while noting that the lower court may still proceed with the matter as a complaint if required by law.
Issues considered
- Whether offences under Sections 115(2), 351(3) and 352 of the BNSS are cognizable.
- Whether a charge sheet filed by a police officer for a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) of the BNSS.
- Whether the cognizance order and subsequent proceedings can be quashed on the ground of legal error.
Legislation cited
- BNSS — s. 115(2), 2(1)(h), 351(3), 352
Subjects
- non‑cognizable offence
- complaint vs police report
- quash charge sheet
- cognizance error
- Section 528 application
- high court judgment
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 15134 of 2026
Sumit And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ranjeet Singh
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
chargesheet dated 14.04.2025 and cognizance order dated 30.07.2025 along
with further proceedings of Case No.19832 of 2025 (State Vs. Sumit and
another), arising out of Case Crime No.49 of 2025, under Section 115(2),
351(3), 352 of BNS, P.S. Titawi, District Muzaffarnagar, pending in the
court of learned Additional Civil Judge (J.D.), Court No.7, Muzaffarnagar.
3. Learned counsel for applicants has made only one submission before the
Court that offences under Section 115(2), 351(3), 352 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 applicants 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
applicants, 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 applicants.
6. Before proceeding further, the relevant provisions of Section 2(1)(h) of
BNSS are being reproduced for ready reference as under:-
"2. Definitions.-(1) In this Sanhita, unless the context otherwise
NA528 No. 15134 of 2026
2
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 115(2), 351(3), 352
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 30.07.2025 passed in Case No.19832 of 2025
(State Vs. Sumit and another), arising out of Case Crime No.49 of 2025,
summoning the applicants on the basis of chargesheet submitted by
concerned Investigating Officer under Section 115(2), 351(3), 352 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
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