GANGA PRASAD SAHU AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 29376 of 2026

Ganga Prasad Sahu And 3 Others
                                                                  .....Applicant(s)
                                     Versus
State of U.P. and Another
                                                                      .....Opposite
                                                                            Party(s)

Counsel for Applicant(s)                             :    Ashish Pandey
Counsel for Opposite Party(s)                        :    G.A.

Court No. - 77
               HON'BLE SANJAY KUMAR PACHORI, J.

1. Sri Ashish Pandey, learned counsel for the applicants and Sri Chhavi Pal
Singh, learned A.G.A. for the State are present.

2. The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed to quash the entire proceedings of Criminal
Case No. 5057 of 2018, arising out of N.C.R. No. 44 of 2018, under Section
323 of I.P.C., Police Station Vijaynagar, District Ghaziabad as well as
cognizance/summoning order dated 26.10.2018, pending in the Court of
Additional Civil Judge (S.D.), Court No. 5, Ghaziabad.

3. Delay in filing the present application is explained.

4.     Learned counsel for the applicants submits that the
cognizance/summoning order dated 26.10.2018 has been passed against the
applicants on printed proforma and the magistrate took cognizance as a
police case, which is against the provision of Section 2(d) of Cr.P.C.

5. Learned counsel for the applicants submits that the offence punishable
under Section 323, I.P.C. is non-cognizable offence and as per provision of
Section 2(d) of Cr.P.C. the case could not be a State case and it has been
proceeded as a State case, the cognizance/ summoning order is an abuse of
the process of law.

6. Section 2(d) of Cr.P.C. is reproduced herein below:

        (d)"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
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                                            discloses, after investigation, the commission of a non-cognizable
                                            offence shall be deemed to be a complainant, and the police officer by
                                            whom such report is made shall be deemed to be the complainant;

                                    7. A bare perusal of explanation added to Section 2(d) shows that this
                                    explanation speaks about cases where police has investigated a cognizable
                                    case but investigation made discloses a non-cognizable offence.

                                    8. In view of what has been stated above, the present application is
                                    disposed of. The order impugned dated 26.10.2018 passed by Additional
                                    Civil Judge (S.D.), Court No. 5, Ghaziabad is, hereby, quashed. The matter
                                    is remanded back to the court concerned and the Magistrate is directed to
                                    pass a fresh order after applying the judicial mind.

                                    September 8, 2026
                                    T. Sinha
                                                                                       (Sanjay Kumar Pachori,J.)




Digitally signed by :-
TRIPTI SINHA
High Court of Judicature at Allahabad