Allahabad High Court

DEVESH YADAV AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 8 September 2026
Bench: SANJAY KUMAR PACHORI

Holding

The cognizance and summoning order dated 4‑April‑2026 is quashed and the matter is remanded for a fresh order.

Summary

The applicants filed an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita seeking to quash the cognizance and summoning order dated 4‑April‑2026 in Criminal Case No. 371 of 2026, which arose from an FIR dated 14‑Sept‑2025 alleging offences under Sections 115(2), 352 and 3(5) of the BNS. The applicants contended that the alleged offences are non‑cognizable under Section 2(d) of the Criminal Procedure Code and that the order was issued as an abuse of process. The court examined the definition and explanation of “complaint” in Section 2(d) of the CrPC and held that the police report on a non‑cognizable offence is deemed a complaint, but the present order was improperly passed. Consequently, the court quashed the impugned order and remanded the matter to the lower court for a fresh order. The application was disposed of.

Issues considered

Whether the offences under Sections 115(2), 352 and 3(5) of the Bharatiya Nagarik Suraksha Sanhita are non‑cognizable under Section 2(d) of the Criminal Procedure Code.
Whether the cognizance/summoning order dated 4‑April‑2026 constitutes an abuse of the process of law.
Whether an application under Section 528 of the BNS can be entertained to quash such an order.

Legislation cited

Bharatiya Nagarik Suraksha Sanhita — s. 115(2), 3(5), 352
Code of Criminal Procedure, 1973 — s. 2(d)

Subjects

Section 528
Bharatiya Nagarik Suraksha Sanhita
non‑cognizable offence
quash order
abuse of process
Criminal Procedure Code
cognizance
FIR
magistrate

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 30896 of 2026

Devesh Yadav And 3 Others
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Alok Kumar, Rahul Yadav,
Vivekanand Yadav
Counsel for Opposite Party(s) : G.A.

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

1. Heard, Sri Rahul Yadav, learned counsel for the applicant and Sri
Alok Kumar Mishra, learned A.G.A. for the State.

2. The present application under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita has been filed to quash the entire proceedings of
Criminal Case No. 371 of 2026, arising out of Case Crime No. 258 of
2025, under Sections 115(2), 352, 3(5) of BNS, Police Station- Pawai
District Azamgarh as well as cognizance/summoning order dated
4.4.2026, pending in the court of Gram Nyayalay, Phoolpur, Azamgarh.

3. Learned counsel for the applicant submits that the first information
report dated 14.9.2025 has been lodged on the basis of false and frivolous
allegations with ulterior motive and only to harass the present applicant.

4. Learned counsel for the applicant submits that the offence
punishable under Sections 115(2), 352, 3(5) of BNS, is a non-cognizable
offence 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.

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

(d)"complaint" means any allegation made orally or in writing to a
NA528 No. 30896 of 2026
2

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;

6. A bare perusal of explanation added to Section 2(d) shows that this
explanation speaks about cases where police has investigated a case but
investigation made discloses a non-cognizable offence, such report shall
be deemed to be complaint.

7. In view of what has been stated above, the present application is
disposed of. The order impugned dated 4.4.2026, passed by Gram
Nyayalay, Phoolpur, Azamgarh 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.

(Sanjay Kumar Pachori,J.)
September 9, 2026
Ishan

Digitally signed by :-
ISHAN JAISWAL
High Court of Judicature at Allahabad

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