GOPAL CHOUDHARYversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 35697 of 2026

Gopal Choudhary
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)                    :    Satya Prakash Singh
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
chargesheet dated 30.12.2025 and cognizance order dated 02.05.2026 along
with entire proceedings of Case No.119628 of 2026 (State Vs. Gopal
Choudhary), arising out of Case Crime No.718 of 2025, under Section
115(2), 324(4) of BNS, P.S. Bisrakh, District Gautam Budh Nagar, pending
in the court of learned Chief Judicial Magistrate, Gautam Budh Nagar.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Section 115(2), 324(4) of BNS are non-cognizable
and in view of the explanation to Section 2(1)(h) of 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
judgment passed in the case of Shakila Bano and others Vs. State of U.P.
and another, 2008 (61) ACC 636.

4. Since the argument as advanced on behalf of learned counsel for
applicant, is based on legal issue, no notice is required to be issued to
opposite party no.2.

5. Although, learned AGA opposed the prayer sought through the instant
application but did not dispute the submissions so made by learned counsel
for applicant.

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

     "2. Definitions.-(1) In this Sanhita, unless the context otherwise
                                                                                              NA528 No. 35697 of 2026
                                                                     2

                                         requires,-

                                         (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."

                                    7. In view of the above explanation, charge sheet submitted by the concerned
                                    Investigating Officer in the present case under Section 115(2), 324(4) of
                                    BNS, should have been treated as complaint and it is to be decided as
                                    complaint but 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.

                                    8. In view thereof, order dated 02.05.2026 passed in Case No.119628 of
                                    2026 (State Vs. Gopal Choudhary), arising out of Case Crime No.718 of
                                    2025, summoning the applicant on the basis of chargesheet submitted by
                                    concerned Investigating Officer under Section 115(2), 324(4) of 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 28, 2026
                                    Vivek Kr.
                                                                                          (Saurabh Srivastava,J.)




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