Allahabad High Court
AARTI DWIVEDI AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
A police‑prepared charge‑sheet relating to a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) BNSS and therefore cannot form the basis of a State‑initiated cognizance; the cognizance order is set aside.
Summary
The applicants filed an application under Section 528 of the BNSS seeking to quash a charge‑sheet dated 9 January 2026 and the cognizance order dated 30 June 2026 passed by the Additional Chief Judicial Magistrate, Banda, in a case arising from offences under Sections 352, 115(2) and 351(3) BNS. The sole ground advanced was that these offences are non‑cognizable and, under the explanation to Section 2(1)(h) BNSS, a police report of a non‑cognizable offence is deemed a complaint, not a police case. The opposite parties did not contest this submission. The Court held that the charge‑sheet must be treated as a complaint and the magistrate erred in taking cognizance as a State case. Consequently, the cognizance order was set aside and the application was partly allowed, with a direction that the matter may proceed as a complaint if required. The order does not preclude the lower court from continuing the proceedings in the appropriate complaint mode.
Issues considered
- Whether offences under Sections 352, 115(2) and 351(3) BNS are non‑cognizable.
- Whether a police‑prepared charge‑sheet in respect of a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) BNSS.
- Whether the Additional Chief Judicial Magistrate erred in taking cognizance of the matter as a State‑initiated case.
Legislation cited
- Bihar Negotiable and Settlement (BNSS) Act — s. 115(2), 2(1)(h), 351(3), 352
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- Section 528
- quashing order
- cognizance error
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 32222 of 2026
Aarti Dwivedi And 2 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Gyanendra Singh
Counsel for Opposite Party(s) : Akarsh Dwivedi, G.A., Varchasva
Dwivedi
Court No. - 79
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for applicants, Sri Akarsh Dwivedi, learned
counsel for opposite party no. 2 and learned AGA for State.
2. The present application has been preferred for seeking quashing of charge
sheet dated 9.1.2026 and cognizance order dated 30.6.2026 passed by
learned Additional Chief Judicial Magistrate, Second, Banda as well as
entire proceeding of Case no. 844/IX/2026 (State vs. Kapil Narayan and
others) arising out of Case Crime no. 114 of 2025 under sections 352,
115(2), 351(3) BNS, PS- Mahila Thana, District Banda.
3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 352, 115(2), 351(3) BNS are non-
cognizable and in view of the explanation to Section 2(1)(h) 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 judgments passed in the case of Shakila Bano and others
Vs. State of U.P. and another, 2008 (61) ACC 636.
4. Although, learned counsel for opposite parties 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)
NA528 No. 32222 of 2026
2
BNSS are being reproduced for ready reference as under:-
"2. Definitions.-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 Sections 352, 115(2), 351(3)
BNS shall be treated as complaint and it is to be decided as complaint and
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 30.6.2026 passed by learned Additional Chief
Judicial Magistrate, Second, Banda summoning the applicants on the basis
of chargesheet submitted by concerned Investigating Officer under Sections
352, 115(2), 351(3) 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
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
Checking your session…