Allahabad High Court
SAMEER ABBAS AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge sheet filed under Sections 352 and 351(3) of the BNSS is to be treated as a complaint, and the magistrate’s cognizance as a State case is erroneous.
Summary
The applicants filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 12‑08‑2025 and a summons order dated 24‑12‑2025 issued by the Judicial Magistrate, Sambhal, in a case involving alleged offences under Sections 352 and 351(3) of the BNSS. The sole contention raised was that these offences are non‑cognizable and, per the explanation to Section 2(1)(h) of the BNSS, the charge sheet should be treated as a complaint rather than a police case. The State did not contest this legal submission. The Court examined the definition of "complaint" and the explanatory clause, concluding that a police report of a non‑cognizable offence is deemed a complaint, making the magistrate’s taking of cognizance as a State case erroneous. Consequently, the summons order was set aside and the application was partly allowed, with a clarification that the case may proceed as a complaint if required by law.
Issues considered
- Whether offences under Sections 352 and 351(3) of the BNSS are non‑cognizable.
- Whether a charge sheet filed under these sections must be treated as a complaint under the explanation to Section 2(1)(h) of the BNSS.
- Whether the Judicial Magistrate erred in taking cognizance of the matter as a State case.
Legislation cited
- BNSS — s. 2(1)(h), 351(3), 352
Subjects
- non‑cognizable offence
- charge sheet
- complaint
- Section 528
- quashing order
- magistrate cognizance
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 16228 of 2026
Sameer Abbas And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Siddhartha Kumar Mishra
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 charge
sheet dated 12.8.2025 and summoning order dated 24.12.2025 passed by
learned Judicial Magistrate, Court no. 1, Sambhal in Case no. 5812 of 2025
arising out of Case Crime no. 190 of 2025 under sections 352, 351(3) BNS,
PS- Asmoli, District Sambhal.
3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 352, 351(3) 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 applicant has placed reliance upon the
judgments passed in the case of 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 applicant.
5. Since only legal arguments have been raised at the behest of applicants,
process to issue notice to opposite party no. 2 is hereby dispensed with.
6. Before proceeding further, the relevant provisions of Section 2(1)(h)
NA528 No. 16228 of 2026
2
BNSS are being reproduced for ready reference as under:-
"2. Definitions.-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 Sections 352, 351(3) 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.
8. In view thereof, order dated 24.12.2025 passed by learned Judicial
Magistrate, Court no. 1, Sambhal summoning the applicants on the basis of
chargesheet submitted by concerned Investigating Officer under Sections
352, 351(3) 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.
(Saurabh Srivastava,J.)
May 6, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
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