Allahabad High Court

DHIRAJ GUPTA AND 3 OTHERSversusSTATE OF UP AND ANOTHER

Decided: 16 September 2026
Bench: SAURABH SRIVASTAVA

Holding

The charge‑sheet for the non‑cognizable offences is deemed a complaint under Section 2(1)(h) BNSS, rendering the cognizance order treating it as a State case erroneous and therefore set aside.

Summary

The applicants filed an application under Section 528 BNSS seeking to quash a charge‑sheet dated 18‑Oct‑2025 and the cognizance order dated 25‑Jul‑2026 in Criminal Case No. 8728 of 2026. They contended that the offences alleged—Sections 115(2), 352 and 351(3) BNS—are non‑cognizable and that, under the explanation to Section 2(1)(h) BNSS, a police report of a non‑cognizable offence is deemed a complaint, not a police case. The State did not dispute these legal submissions. The High Court accepted the argument, held that the charge‑sheet must be treated as a complaint and that the learned magistrate erred in taking cognizance as a State case. Consequently, the court set aside the cognizance order and allowed the application in part, while permitting the lower court to proceed with the matter as a complaint if required.

Issues considered

Whether offences under Sections 115(2), 352 and 351(3) BNS are non‑cognizable.
Whether a police report (charge‑sheet) relating to a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) BNSS.
Whether the cognizance order treating the charge‑sheet as a State case is a legal error.
Whether the cognizance order can be set aside and the proceeding be converted to a complaint case.

Legislation cited

Bihar Negotiable Sanhita (BNSS) — s. 115(2), 2(1)(h), 351(3), 352, 528

Subjects

non‑cognizable offence
charge‑sheet
complaint
cognizance
Section 528 BNSS
quash
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 36790 of 2026

Dhiraj Gupta And 3 Others
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Nirbhay Singh
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 18.10.2025 and cognizance order dated 25.7.2026 passed by
learned Additional Civil Judge (Senior Division)/ACJM, Kasganj as well as
entire proceeding of Case no. 8728 of 2026 (State vs. Dhiraj Kumar Gupta
and others) arising out of Case Crime no. 0283 of 2025 under sections
115(2), 352, 351(3) BNS, PS- Amanpur, District Kasganj.

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 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. Since only legal arguments have been raised at the behest of applicants,
process to issue notice to opposite party no. 2 is hereby dispensed with.
NA528 No. 36790 of 2026
2

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

"2. Definitions.-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."

7. 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.

8. In view thereof, order dated 25.7.2026 passed by learned Additional Civil
Judge (Senior Division)/ACJM, Kasganj summoning the applicants on the
basis of chargesheet 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.

(Saurabh Srivastava,J.)
September 17, 2026
Shaswat

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

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