Allahabad High Court
ATAURRAHMAN AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge‑sheet filed by the investigating officer for the non‑cognizable offences under Sections 352 and 351(3) BNS must be treated as a complaint, 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 the charge‑sheet dated 28‑03‑2026, the cognizance and summoning order dated 09‑07‑2026, and the entire proceedings of State v Ataurrahman Khan & others under Sections 352 and 351(3) BNS. They contended that these offences are non‑cognizable and, per the explanation to Section 2(1)(h) BNSS, a police‑prepared charge‑sheet in such a case must be treated as a complaint, not as a police case, and therefore the magistrate erred in taking cognizance as a State case. The State did not dispute this submission. The Court examined the definition of “complaint” and its explanation in Section 2(1)(h) BNSS and held that the charge‑sheet indeed qualifies as a complaint. Consequently, the cognizance/summoning order was set aside, and the application was partly allowed, with a clarification that the lower court may still proceed treating the matter as a complaint if required.
Issues considered
- Whether offences under Sections 352 and 351(3) BNS are non‑cognizable.
- Whether a charge‑sheet filed by a police officer for a non‑cognizable offence is to be treated as a complaint under the explanation to Section 2(1)(h) BNSS.
- Whether the magistrate erred in taking cognizance of the case as a State case.
Legislation cited
- BNSS — s. 2(1)h, 351(3), 352, 528
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- cognizance
- Section 528
- criminal procedure
- quashing of proceedings
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 34120 of 2026
Ataurrahman And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ambrish Kumar, Saddam Husain
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
chargesheet dated 28.03.2026, cognizance/summoning order dated
09.07.2026 as well as entire proceedings of Case No.632 of 2026 (State Vs.
Ataurrahman Khan & others) arising out of Case Crime No.38 of 2026,
under Sections 352, 351(3) BNS, P.S. Khesraha, District- Siddharth Nagar,
pending in the court of learned Judicial Magistrate, Bansi, Siddharth Nagar.
3. Learned counsel for applicants has made only one submission before the
Court that offences under Sections 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. 34120 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 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 09.07.2026 passed by
learned Civil Judge (JD)/Judicial Magistrate, Bansi, Siddharth Nagar against
the applicants on the basis of charge-sheet submitted by concerned
Investigating Officer under Sections 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 11, 2026
Saif
(Saurabh Srivastava,J.)
Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad
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