Allahabad High Court

SIRAJDHWAJ AND ANOTHERversusSTATE OF U.P. AND ANOTHER

Decided: 8 September 2026
Bench: SAURABH SRIVASTAVA

Holding

A charge‑sheet for non‑cognizable offences under the BNSS is to be treated as a complaint, rendering the cognizance order invalid.

Summary

The applicants filed an application under Section 528 of the BNSS seeking quashing of a charge‑sheet dated 24‑12‑2025 and the cognizance order dated 02‑06‑2026 in Criminal Case No.70/IX/2026. They contended that the offences alleged—Sections 115(2), 352 and 351(3) of the BNSS—are non‑cognizable and that, under the explanation to Section 2(1)h BNSS, a police report in such a case must be treated as a complaint, not as a police case. Relying on earlier judgments of the Allahabad High Court, the court examined whether the charge‑sheet could be the basis for a State‑initiated prosecution. The court held that the charge‑sheet indeed amounts to a complaint and that the civil judge erred in taking cognizance as a State case. Consequently, the cognizance/summoning order was set aside and the application was partly allowed, with a direction that the lower court may continue the proceedings as a complaint case if it wishes.

Issues considered

Whether offences under Sections 115(2), 352 and 351(3) BNSS are non‑cognizable
Whether a charge‑sheet filed by a police officer for a non‑cognizable offence is deemed a complaint under Section 2(1)h BNSS
Whether the cognizance taken by the Civil Judge as a State case is a legal error

Legislation cited

BNSS — s. 115(2), 2(1)h, 351(3), 352

Subjects

non‑cognizable offence
charge‑sheet
complaint
Section 528
BNSS
cognizance
quash
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 34969 of 2026

Sirajdhwaj And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Puneet Kumar
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 24.12.2025 along with cognizance/summoning order
dated 02.06.2026 as well as entire proceedings of Criminal Case
No.70/IX/2026, arising out of Case Crime No.159 of 2025, Under Sections
115(2), 352, 351(3) BNS, P.S. Jaspura, District Banda, pending in the court
of learned Civil Judge (Junior Division) 3rd, Banda.

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 Murli and others Vs.
State of U.P. and another, 2008 (61) ACC 54; Virendra Singh and others
Vs. State of U.P. and others, 2002 (45) ACC 609 and 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. 34969 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 02.06.2026 passed by
learned Civil Judge (Junior Division) 3rd, Banda 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.

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 9, 2026
Ashish/-
(Saurabh Srivastava,J.)

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

Continue reading with your account

Checking your session…