Allahabad High Court
RAVI KUMAR GUPTA AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- PADAM NARAIN MISHRA
Holding
A charge‑sheet filed for a non‑cognizable offence under the BNSS cannot be treated as a complaint, rendering the magistrate’s order taking cognizance vitiated and liable to be set aside.
Summary
The applicants filed a Section 528 BNSS application seeking to quash the order dated 03‑02‑2025 of the Additional Chief Judicial Magistrate, Varanasi, which had taken cognizance of offences under Sections 115, 351(2) and 352 of the BNSS. The offences are non‑cognizable, and the police had filed a charge‑sheet after an investigation ordered under Section 174(2) BNSS. The applicants contended that a charge‑sheet for a non‑cognizable offence cannot be treated as a complaint and therefore the magistrate had no jurisdiction to take cognizance. The court examined Section 2(h) of the BNSS, which defines a “complaint” and treats a police report on a non‑cognizable offence as a complaint. Finding merit in the applicants’ argument, the court held that the charge‑sheet was incorrectly treated as a state case and the cognizance order was vitiated. Consequently, the order of summons dated 03‑02‑2025 was set aside. The court directed the lower court to pass a fresh order in accordance with this observation.
Issues considered
- Whether a charge‑sheet filed for a non‑cognizable offence under the BNSS can be treated as a complaint for the purpose of taking cognizance.
- Whether the magistrate had jurisdiction to take cognizance and summon the accused in respect of non‑cognizable offences under Sections 115, 351(2) and 352 BNSS.
- Whether the application under Section 528 BNSS seeking quash of the cognizance order should be allowed.
Legislation cited
- BNSS — s. 115, 174(2), 2(h), 351(2), 352, 528
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- cognizance
- Section 528 BNSS
- quash order
- High Court
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 27765 of 2025
Ravi Kumar Gupta And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Syed Mohammed Jafer Husain
Counsel for Opposite Party(s) : G.A., Mohd. Afzal
Court No. - 82
HON'BLE PADAM NARAIN MISHRA, J.
1. List revised. Learned counsel for the opposite party no. 2 is not present.
2. Heard Sri Syed Mohammed Jafer Husain, learned counsel for the
applicants, learned AGA for the State and perused the record.
3. The present 528 BNSS application file by the applicants seeking quashing
of the impugned order dated 03.02.2025 passed by ACJM IInd, Varanasi in
Case No. 4453 of 2025 arising out of Case Crime No. 97 of 2024 under
sections 115, 352 and 351(2) BNS, Police Station Dashashwamedh, District
Varanasi pending in the ACJM IInd, Varanasi.
4. Brief fact of the present case is that NCR was lodged as N.C.R. No.27 of
2024 on 13.9.2024 offence u/s. 115, 352, 351(2) of BNS. Subsequently, the
opposite party No.2 by moving an application u/s.174(2) BNSS got an order
of investigation. The NCR was converted in Case Crime No. 4453 of 2025
on 26.11.2024. Thereafter, the investigating officer submitted a charge sheet
u/s.115,352,351(2) BNS and the magistrate has took cognizance under the
aforesaid sections.
5. Learned counsel for the applicants submitted that lodging of F.I.R., filing
of charge sheet and taking cognizance in the offences which are non-
cognizable offence in nature, are wholly illegal and unjustified in the eyes of
law. He further submitted that neither the police could investigate into the
offences nor submit a report on which question of taking cognizance could
have arisen because sections 115,352,351(2) BNS is non-cognizable
offence therefore, the entire proceedings initiated against the applicants is
liable to be quashed by this Hon'ble Court.
NA528 No. 27765 of 2025
2
6. Learned A.G.A. could not dispute the aforesaid facts.
7. Considering the rival submission advanced by the learned counsel for the
parties and perusing the material available on record, It is undisputed that
NCR was registered for the offence under Sections 115, 351(2) and 352 of
BNS and after investigation charge-sheet has been submitted under Sections
115, 351(2) and 352 of BNS, which is a non-cognizable offence, hence the
explanation of Section 2(h) BNSS will apply in the present matter which is
as follows:-
"(h) "complaint" means any allegation made orally or in writing to a Magistrate, with
a view to his taking action under this Code, 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;"
8. In the present case on the perusal of material available on records, it is
evident that the charge sheet submitted by the Investigating Officer instead
of being treated as a complaint, has been treated as a state case by the
concerned court, which is not sustainable in the eyes of the law. So, there is
substance in the argument of the learned counsel for the applicants, the order
of cognizance/summoning dated 03.02.2025 is vitiated in the eye of law and
liable to be set aside.
9. Summoning order dated 03.02.2025 passed by ACJM IInd, Varanasi in
Case Crime No. 4453 of 2025 arising out of Case Crime No. 97 of 2024
under sections 115, 352 and 351(2) BNS, Police Station Dashashwamedh,
District Varanasi is hereby set aside.
10. The court concerned is directed to pass a fresh order in the light of the
observations made herein above.
(Padam Narain Mishra,J.)
January 21, 2026
v.k. updh.
Digitally signed by :-
VINOD KUMAR UPADHYAY
High Court of Judicature at Allahabad
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