Allahabad High Court

AJAY TIWARI @ KALLU AND ANOTHERversusSTATE OF U.P. AND ANOTHER

Decided: 5 May 2026
Bench: SAURABH SRIVASTAVA

Holding

A charge‑sheet relating to non‑cognizable offences under the BNSS must be treated as a complaint, and the magistrate's cognizance order treating it as a State case is set aside.

Summary

The applicants, Ajay Tiwari and another, filed an application under Section 528 of the BNSS seeking to quash a charge‑sheet dated 25‑10‑2025 and the cognizance order dated 26‑11‑2025 in State v. Ajay Tiwari. They contended that the offences alleged under Sections 221, 352 and 351(3) of the BNSS are non‑cognizable and, per the explanation to Section 2(1)(h) of the BNSS, a police report in such cases must be treated as a complaint, not as a police case. The court accepted this legal submission, held that the magistrate erred in taking cognizance as a State case, and set aside the order of 26‑11‑2025. The application was partly allowed, but the court clarified that the trial court may still proceed with the matter as a complaint case if required. The decision rests on the interpretation of the BNSS definition of "complaint" and its explanatory clause.

Issues considered

Whether offences under Sections 221, 352 and 351(3) of the BNSS are non‑cognizable.
Whether a charge‑sheet filed by a police officer for a non‑cognizable offence must be treated as a complaint under the explanation to Section 2(1)(h) of the BNSS.
Whether the magistrate erred in taking cognizance of the case as a State case.

Legislation cited

B.N.S.S. — s. 2(1)(h)

Subjects

non‑cognizable offence
charge‑sheet
complaint
Section 528
quash
cognizance
BNSS

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 16053 of 2026

Ajay Tiwari @ Kallu And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Anant Prakash Swarnkar, Ram Raksha
Tiwari
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 25.10.2025 and cognizance order dated 26.11.2025 along
with entire proceedings of Case No.1173/IX of 2025 (State Vs. Ajay Tiwari
@ Kallu and others), arising out of Case Crime No.299 of 2025, under
Section 221, 352, 351(3) of BNS, P.S. Girwan, District Banda, pending in
the court of learned Additional Civil Judge (J.D.)-III/ Judicial Magistrate,
Banda.

3. Learned counsel for applicants has made only one submission before the
Court that offences under Section 221, 352, 351(3) 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:-
NA528 No. 16053 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 221, 352, 351(3) 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 26.11.2025 passed in Case No.1173/IX of
2025 (State Vs. Ajay Tiwari @ Kallu and others), arising out of Case Crime
No.299 of 2025, summoning the applicants on the basis of chargesheet
submitted by concerned Investigating Officer under Section 221, 352, 351(3)
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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