RAJESH KUSHWAHA @ RAJESHversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 33179 of 2026

Rajesh Kushwaha @ Rajesh
                                                                .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                     :   Mayank Prakash Rawat
Counsel for Opposite Party(s)                :   G.A.

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

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

2. The present application has been preferred for seeking quashing of
charge-sheet dated 03.04.2025 and cognizance/summoning order dated
30.07.2025 along with entire proceedings of Criminal Case No.17818 of
2025 (State vs. Kali Charan and Others) arising out of Case Crime No.01 of
2025, under Sections 352, 351(2), 351(3) BNS, P.S. Kamlanagar, District-
Agra, pending in the court of learned Chief Judicial Magistrate, Court No.7,
Agra.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 352, 351(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 AGA 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 BNSS
are being reproduced for ready reference as under:-

"2. Definitions.- (1) In this Sanhita, unless the context otherwise requires,-
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                                    (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, 351(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. Since the legal issue has been raised by learned counsel for the applicant
                                    and as such process to issue notice to opposite party no.2 is hereby dispensed
                                    with.

                                    8. In view thereof, cognizance/summoning order dated 30.07.2025 passed by
                                    learned Chief Judicial Magistrate, Court No.7, Agra against the applicants
                                    on the basis of charge-sheet submitted by concerned Investigating Officer
                                    under Sections 352, 351(2), 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