Allahabad High Court
SHYAM BIHARI CHAUHAN AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The court held that Sections 324(4) and 351(2) BNSS are non‑cognizable offences, so a police report in respect of them is deemed a complaint and the magistrate’s cognizance order was erroneous.
Summary
The applicants filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 17‑10‑2024 and a cognizance order dated 10‑3‑2026 issued by the Judicial Magistrate in Deoria. They contended that the offences alleged—Sections 324(4) and 351(2) of the BNSS—are non‑cognizable and that, under the explanation to Section 2(1)(h) of the BNSS, a police report in such cases is deemed a complaint, not a police case. The State did not dispute this legal submission. The High Court held that the magistrate erred in taking cognizance as a State case and set aside the order of summons, allowing the application in part, while noting that the case may proceed as a complaint if required. The order thus quashes the earlier cognizance but does not bar further complaint‑type proceedings.
Issues considered
- Whether offences under Sections 324(4) and 351(2) BNSS are cognizable or non‑cognizable.
- Whether a charge sheet filed by the investigating officer for a non‑cognizable offence is to be treated as a complaint under the explanation to Section 2(1)(h) BNSS.
- Whether the cognizance order and summons issued by the Judicial Magistrate can be set aside on this ground.
Legislation cited
- Bihar Negotiable Sanhita (BNSS) — s. 2(1)(h), 324(4), 351(2), 528
Subjects
- non‑cognizable offence
- charge sheet
- complaint
- cognizance
- Section 528
- quashing
- criminal procedure
- BNSS
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 36832 of 2026
Shyam Bihari Chauhan And 3 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Alok Ranjan Mishra, Ashutosh Chaube,
Sarvjeet Singh Chauhan
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 17.10.2024 and cognizance order dated 10.3.2026 passed by
learned Additional Civil Judge (J.D.)/Judicial Magistrate, Court no. 20,
Deoria as well as entire proceeding of Case Crime no. 0192 of 2024 under
sections 324(4), 351(2) BNS, PS- Bhaluani, District Deoria.
3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 324(4), 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 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.
6. Before proceeding further, the relevant provisions of Section 2(1)(h)
NA528 No. 36832 of 2026
2
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 324(4), 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.
8. In view thereof, order dated 10.3.2026 passed by learned Additional Civil
Judge (J.D.)/Judicial Magistrate, Court no. 20, Deoria summoning the
applicants on the basis of chargesheet submitted by concerned Investigating
Officer under Sections 324(4), 351(2) 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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