HIMMAT LAL KUMAWAT AND ANOTHERversusSTATE OF U.P. AND ANOTHER

    HIGH COURT OF JUDICATURE AT ALLAHABAD
         APPLICATION U/S 528 BNSS No. - 32942 of 2026

Himmat Lal Kumawat And Another
                                                .....Applicant(s)
                               Versus

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

Counsel for Applicant(s)      : Jaswant   Singh,           Rajiv
                                Chowdhury
Counsel for Opposite Party(s) : G.A.

Court No. - 79
             HON'BLE SAURABH SRIVASTAVA, J.

1. At the very outset, Sri Rajiv Chowdhury, learned counsel for
applicants prays to delete name of applicant no. 2 namely Vipin
Kumar from array of parties.

2. Prayer so made by learned counsel for applicants is allowed.
Necessary correction shall be carried out during course of the
day.

3. Heard learned counsel for the applicant and learned AGA for
the State.

4. The present application has been preferred for seeking
quashing of charge sheet dated 15.2.2026 and cognizance order
dated 26.5.2026 passed by learned I/c Judicial Officer, Village
Court, Tundla Firozabad as well as entire proceeding of Case no.
82 of 2026 (State vs. Himmat Lal Kumawat and another) arising
out of Case Crime no. 389 of 2025 under sections 351(2) BNS,
PS- Tundla, District Firojabad.

5. Learned counsel for applicant has made only one submission
before the Court that offences under Section 351(2) 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
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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.

6. Although, learned AGA opposed the prayer sought through the
instant application but did not dispute the submissions so made
by learned counsel for applicant.

7. Since only legal arguments have been raised at the behest of
applicants, process to issue notice to opposite party no. 2 is
hereby dispensed with.

8. Before proceeding further, the relevant provisions of Section
2(1)(h) 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."

9. In view of the above explanation, charge sheet submitted by
the concerned Investigating Officer in the present case under
Section 351(2) 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.

10. In view thereof, order dated 26.5.2026 passed by learned I/c
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                                        Judicial Officer, Village Court, Tundla Firozabad summoning
                                        the applicant namely Himmat Lal Kumawat on the basis of
                                        chargesheet submitted by concerned Investigating Officer under
                                        Sections 351(2) BNS treating the same as State case, is set aside
                                        only in respect of applicant namely Himmat Lal Kumawat.

                                        11. Accordingly, the instant application is partly allowed.

                                        12. 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.

                                        September 21, 2026
                                        Shaswat

                                                                                 (Saurabh Srivastava,J.)




Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad