RASHID @ HAFIZ AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 36004 of 2026

Rashid @ Hafiz And 3 Others
                                                            .....Applicant(s)
                                  Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Padmaker        Pandey,    Rakesh     Kumar
                                Shukla
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 08.03.2026 along with cognizance/summoning order
dated 01.07.2026 passed by learned Judicial Magistrate, Sahaswan, Budaun
as well as entire proceedings of Case No.1285 of 2026 (State vs. Rashid @
Hafiz and Others) arising out of Case Crime No.07 of 2026, under Sections
221, 352, 351(2) BNS, P.S. Mujariya, District- Budaun.

3. Firstly, learned counsel for applicants submits before this Court that
offences under Sections 221, 352, 351(2) 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. Secondly, learned counsel for applicants submits that cognizance of
offence taken up against the applicants in pursuance to section 221 BNS is
barred with the provisions contained under section 215 BNSS, since the
prosecution of applicants for the offence under Section 221 BNS, is
permissible only on a complaint in writing made by the competent officer,
whose order could have been violated by the accused; the prosecution for
offence under Section 221 BNS cannot be initiated on a police report. In
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support of his second submission, learned counsel for applicants relied upon
the judgement rendered by Hon'ble Gujarat High Court in Rabari Nagabhai
Jetabhai Vanda vs. State of Gujarat, decided on 13.02.2026 in Crl. Misc.
Application (for quashing and set aside FIR/Order) No.21473 of 2025.

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,-

     (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 221, 352,
351(2) 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 01.07.2026 passed by
learned Judicial Magistrate, Sahaswan, Budaun against the applicants on the
basis of charge-sheet submitted by concerned Investigating Officer under
Sections 221, 352, 351(2) BNS treating the same as State case, is set aside,
in respect of applicant(s) herein.

9. Accordingly, the instant application is partly allowed.
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                                    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
                                    Saif
                                                                                       (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad