Allahabad High Court

JITENDRA RAJBHAR AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 20 September 2026
Bench: SAURABH SRIVASTAVA

Holding

A police‑prepared charge sheet for a non‑cognizable offence is deemed a complaint under Section 2(1)(h) of the BNSS, rendering the magistrate’s cognizance order erroneous and liable to be set aside.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 8‑Nov‑2024 and a cognizance order dated 17‑May‑2025 issued by the Additional Chief Judicial Magistrate‑I, Ballia, in a case arising from offences under Sections 115(2), 352 and 351(2) BNS. The applicants argued that these offences are non‑cognizable and, per the explanation to Section 2(1)(h) of the BNSS, a police report in such matters must be treated as a complaint, not a police case. The State did not contest these legal submissions. The High Court held that the charge sheet indeed constitutes a complaint and that the magistrate erred in taking cognizance as a State case, setting aside the cognizance order. The application was partly allowed, with the court noting that the lower court may still proceed with the matter as a complaint if required. The order was dated 21‑Sept‑2026.

Issues considered

Whether offences under Sections 115(2), 352 and 351(2) BNS are non‑cognizable.
Whether a police‑prepared charge sheet for a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) BNSS.
Whether the magistrate’s cognizance order can be quashed on the ground of legal error.

Legislation cited

BNSS — s. 115(2), 2(1)(h), 351(2), 352

Subjects

non‑cognizable offence
complaint vs police report
quashing charge sheet
Section 528 application
cognizance error
High Court judgment

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 33026 of 2026

Jitendra Rajbhar And 3 Others
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Rana Pratap Singh, Sujit Kumar
Agarwal, Vinod Kumar Upadhyay
Counsel for Opposite Party(s) : G.A.

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

1. Heard learned counsel for the applicants and learned AGA for the State.

2. The present application has been preferred for seeking quashing of charge
sheet dated 8.11.2024 and cognizance order dated 17.5.2025 passed by
learned Additional Chief Judicial Magistrate-I, Ballia as well as entire
proceeding of Case no. 7366 of 2025 (State vs. Jitendra Rajbhar and others)
arising out of Case Crime no. 401 of 2024 under sections 115(2), 352,
351(2) BNS, PS- Rasra, District Ballia.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 115(2), 352, 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 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 AGA opposed the prayer sought through the instant
application but did not dispute the submissions so made by learned counsel
for applicant.

5. 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.
NA528 No. 33026 of 2026
2

6. 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."

7. In view of the above explanation, charge sheet submitted by the concerned
Investigating Officer in the present case under Sections 115(2), 352, 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.

8. In view thereof, order dated 17.5.2025 passed by learned Additional Chief
Judicial Magistrate-I, Ballia summoning the applicants on the basis of
chargesheet submitted by concerned Investigating Officer under Sections
115(2), 352, 351(2) BNS treating the same as State case, is set aside.

9. Accordingly, the instant application is partly allowed.

10. 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 21, 2026
Shaswat

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

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