DHARMENDRA KUMAR SAINIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 36310 of 2026

Dharmendra Kumar Saini
                                                                .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)                      :    Rajeev Kumar Saini
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
charge-sheet dated 13.10.2024 and cognizance/summoning order dated
11.12.2024 along with entire proceedings arising out of Case Crime No.344
of 2024, under Sections 115(2), 352, 351(3) BNS, P.S. Hanumant Vihar,
District South (Commissiionerate Kanpur Nagar) pending in the court of
learned Additional Chief Judicial Magistrate Vth Kanpur Nagar.

3. Learned counsel for applicant 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 applicant 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 applicant.

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. 36310 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 applicant
                                    and as such process to issue notice to opposite party no.2 is hereby dispensed
                                    with.

                                    8. In view thereof, cognizance/summoning order dated 11.12.2024 passed by
                                    learned Additional Chief Judicial Magistrate Vth Kanpur Nagar 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