VIPIN KUMAR YADAV @ VISHVA CHAND YADAVversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 22670 of 2026

Vipin Kumar Yadav @ Vishva Chand Yadav
                                                           .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Ravindra Kumar          Yadav,      Sandeep
                                Kumar Yadav
Counsel for Opposite Party(s) : G.A.

Court No. - 79
                  HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for the applicant and learned AGA for the State.
No one appeared on behalf of opposite party no.2 despite service of notice
which is apparent from the report dated 27.08.2026 submitted by learned
Chief Judicial Magistrate, Prayagraj.

2. The present application has been preferred for seeking quashing of
chargesheet dated 03.12.2025 and cognizance order dated 20.03.2026
along with entire proceedings of Case No.340 of 2026 (State Vs. Alok
Kumar Pandey and others), arising out of Case Crime No.233 of 2025,
under Section 351(2) of BNS, P.S. Jhunsi, District Prayagraj, pending in
the court of learned Additional Chief Judicial Magistrate-05, Prayagraj.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Section 351(2) of BNS is 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. 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. Before proceeding further, the relevant provisions of Section 2(1)(h) of
                                                                                            NA528 No. 22670 of 2026
                                                                     2


                                    BNSS are being reproduced for ready reference as under:-

                                           "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."

                                    6. In view of the above explanation, charge sheet submitted by the
                                    concerned Investigating Officer in the present case under Section 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.

                                    7. In view thereof, order dated 20.03.2026 passed in Case No.340 of 2026
                                    (State Vs. Alok Kumar Pandey and others), arising out of Case Crime
                                    No.233 of 2025, summoning the applicant on the basis of chargesheet
                                    submitted by concerned Investigating Officer under Section 351(2) of
                                    BNS treating the same as State case, is set aside.

                                    8. Accordingly, the instant application is partly allowed.

                                    9. 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.)
                                    September 8, 2026
                                    Vivek Kr.




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