VIVEK NISHAD AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 33178 of 2026

Vivek Nishad And 3 Others
                                                                .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                     :   Akash Kumar Nishad
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 24.06.2025 along with cognizance/summoning order
dated 01.04.2026 as well as entire proceedings of Case No.5256 of 2026
(State vs. Vivek Nishad and Others) arising out of Case Crime No.124 of
2025, under Sections 115(2), 352, 351(3) BNS, P.S. Surauli, District-
Deoria, pending in the court of learned Additional Chief Judicial Magistrate,
Court No.19, Deoria.

3. Learned counsel for applicants has made only one submission before the
Court that offences under Sections 115(2), 352, 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 applicants 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 applicants.

5. Before proceeding further, the relevant provisions of Section 2(1)h BNSS
are being reproduced for ready reference as under:-

"2. Definitions.- (1) In this Sanhita, unless the context otherwise requires,-
                                                                                            NA528 No. 33178 of 2026
                                                                    2


                                    (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 115(2), 352, 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. Since the legal issue has been raised by learned counsel for the applicants
                                    and as such process to issue notice to opposite party no.2 is hereby dispensed
                                    with.

                                    8. In view thereof, cognizance/summoning order dated 01.04.2026 passed by
                                    learned Additional Chief Judicial Magistrate, Court No.19, Deoria against
                                    the applicants on the basis of charge-sheet submitted by concerned
                                    Investigating Officer under Sections 115(2), 352, 351(3) BNS treating the
                                    same as State case, is set aside, in respect of applicant(s) herein.

                                    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.

                                    September 8, 2026
                                    Saif
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad