MUBASHIR AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 35994 of 2026

Mubashir And Another
                                                            .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                     :   Mohd. Ashraf Abbasi
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 17.01.2026 along with cognizance/summoning order
dated 02.06.2026 as well as entire proceedings of Criminal Case No. 760
of 2026 (State vs. Mubashir and another) arising out of Case Crime
No.233 of 2025, under Sections 351(3) BNS, P.S. Qilla, District Bareilly,
pending in the court of learned Additional Chief Judicial Magistrate-VIII,
Bareilly.

3. Learned counsel for applicants has made only one submission before
the Court that offences under Sections 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.
                                                                                          NA528 No. 35994 of 2026
                                                                   2


                                    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,-

                                    (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 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 Additional Chief Judicial Magistrate-VIII, Bareilly against the
                                    applicants on the basis of charge-sheet submitted by concerned
                                    Investigating Officer under Sections 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 29, 2026
                                    Ashish/-

                                                                                       (Saurabh Srivastava,J.)



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