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Allahabad High Court

JAGDISH PATHAK AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided

Holding

The court held that the explanation to Section 2(d) CrPC does not permit a magistrate to take cognizance of a non‑cognizable offence as a police case, and therefore quashed the impugned order.

Summary

The applicants filed an application under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 seeking to quash the cognizance and summoning order dated 1‑1‑2022 in Criminal Case No. 47 of 2022 (Section 323 IPC) before the Additional Chief Judicial Magistrate, Aligarh. They contended that Section 323 IPC is a non‑cognizable offence and that the magistrate’s taking of cognizance as a police case violated Section 2(d) of the Criminal Procedure Code, which excludes police reports on non‑cognizable offences from being treated as complaints. The court examined the explanation to Section 2(d) and held that it applies only when a police investigation of a cognizable case uncovers a non‑cognizable offence, not to the present situation. Consequently, the order dated 1‑1‑2022 was quashed and the matter was remanded to the magistrate to pass a fresh order after applying the judicial mind. The application was disposed of.

Issues considered

  • Whether the magistrate could take cognizance of a non‑cognizable offence (Section 323 IPC) as a police case under Section 2(d) of the CrPC.
  • Whether the order dated 1‑1‑2022 is an abuse of the process of law warranting quash under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

Legislation cited

Subjects

  • non-cognizable offence
  • Section 323 IPC
  • Section 2(d) CrPC
  • quash order
  • Section 528 BNSS
  • abuse of process
  • magistrate cognizance

Judgment

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 35099 of 2026

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

Counsel for Applicant(s)                    :   Devendra Kumar Mishra
Counsel for Opposite Party(s)               :   G.A.

Court No. - 77
              HON'BLE SANJAY KUMAR PACHORI, J.

1. Sri Devendra Kumar Mishra, learned counsel for the applicants and Sri
Puspraj Singh, learned brief holder for the State are present.

2. The present application under Section 528 of Bhartiya Nagrik Suraksha
Sanhita, 2023 has been filed to quash the entire proceedings of Criminal
Case No. 47 of 2022, arising out of Case Crime No. 161 of 2021, under
Section 323, I.P.C., Police Station Gandhi Park, District Aligarh as well as
cognizance/summoning order dated 1.1.2022, pending in the Court of
Additional Chief Judicial Magistrate, Court No. 1, Aligarh.

3.    Learned counsel for the applicants submits that the
cognizance/summoning order dated 1.1.2022 has been passed against the
applicants and the magistrate took cognizance as a police case, which is
against the provision of Section 2(d) of Cr.P.C.

4. Learned counsel for the applicants submits that the offence punishable
under Section 323, I.P.C. is non-cognizable offence and as per provision of
Section 2(d) of Cr.P.C. the case could not be a State case and it has been
proceeded as a State case, the cognizance/ summoning order is an abuse of
the process of law.

5. Section 2(d) of Cr.P.C. is reproduced herein below:

        (d)"complaint" means any allegation made orally or in writing to a
        Magistrate, with a view to his taking action under this Code, 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 complainant, and the police officer by
        whom such report is made shall be deemed to be the complainant;
                                                                                          NA528 No. 35099 of 2026
                                                                   2

                                    6. A bare perusal of explanation added to Section 2(d) shows that this
                                    explanation speaks about cases where police has investigated a cognizable
                                    case but investigation made discloses a non-cognizable offence.

                                    7. In view of what has been stated above, the present application is
                                    disposed of. The order impugned dated 1.1.2022 passed by Additional Chief
                                    Judicial Magistrate, Court No. 1, Aligarh is, hereby, quashed. The matter is
                                    remanded back to the court concerned and the Magistrate is directed to pass
                                    a fresh order after applying the judicial mind.

                                    October 1, 2026
                                    T. Sinha
                                                                                   (Sanjay Kumar Pachori,J.)




Digitally signed by :-
TRIPTI SINHA
High Court of Judicature at Allahabad


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