Allahabad High Court
HARUN KHANversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SANJAY KUMAR PACHORI
Holding
The cognizance and summoning order dated 7 January 2025 is quashed as it was passed for a non‑cognizable offence, and the matter is remanded for a fresh order.
Summary
The applicant, Harun Khan, filed an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita seeking to quash the cognizance and summoning order dated 7 January 2025 in Criminal Case No. 549 of 2025, which arose from an FIR under Section 507 of the Indian Penal Code. The applicant alleged that the FIR was false and frivolous, and that Section 507 pertains to a non‑cognizable offence, making the magistrate’s order an abuse of process. The counsel argued that under Section 2(d) of the Criminal Procedure Code, a police report of a non‑cognizable offence is treated as a complaint and cannot be taken up by a magistrate without a police investigation. The Court examined the statutory provisions and held that the cognizance order was indeed illegal as it was issued for a non‑cognizable offence. Consequently, the Court quashed the impugned order and remanded the matter to the concerned court for a fresh order after applying the judicial mind.
Issues considered
- Whether a Chief Judicial Magistrate can pass a cognizance/summoning order for an offence punishable under Section 507 IPC, which is non‑cognizable.
- Whether Section 2(d) of the CrPC bars proceeding against a non‑cognizable offence without a prior police investigation.
- Whether an application under Section 528 BNSS can be entertained to quash such a cognizance order.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita — s. 528
- Code of Criminal Procedure, 1973 — s. 2(d)
- Indian Penal Code — s. 507
Subjects
- quash
- cognizance order
- non-cognizable offence
- Section 507 IPC
- Section 528 BNSS
- Criminal Procedure Code
- abuse of process
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 31005 of 2026
Harun Khan
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashish Kumar Pandey
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SANJAY KUMAR PACHORI, J.
1. Heard, Sri Ashish Kumar Pandey, learned counsel for the applicant and
Sri A.K. Rai, 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. 549 of 2025 arising out of Case Crime No. 426 of 2024, under
Section 507 of I.P.C., Police Station- Bisrakh, District Gautam Budh Nagar,
as well as cognizance/summoning order dated 7.1.2025, pending in the court
of CJM, Gautam Budh Nagar.
3. Learned counsel for the applicant submits that the first information
report dated 7.6.2024 has been lodged on the basis of false and frivolous
allegations with ulterior motive and only to harass the present applicant. It is
further submitted that charge-sheet has been submitted against the sole
accused under Section 507 of I.P.C. but the cognizance order has been
passed under Section 507 of I.P.C. which is against the position of law.
4. Learned counsel for the applicant submits that the offence punishable
under Section 507 of I.P.C. 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:
NA528 No. 31005 of 2026
2
(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
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 7.1.2025 passed by Chief Judicial
Magistrate, Gautam Budh Nagar, 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 30, 2026
KJ
(Sanjay Kumar Pachori,J.)
Digitally signed by :-
KAMARJAHAN ANSARI
High Court of Judicature at Allahabad
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