Allahabad High Court
ANIL KUMAR @ ANIL KUMAR GUPTA AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
A police charge‑sheet relating to non‑cognizable offences under Sections 115(2), 352 and 351(2) BNS is deemed a complaint under the explanation to Section 2(1)h BNSS, making the cognizance order treating it as a State case invalid.
Summary
The applicants filed an application under Section 528 seeking to quash a charge‑sheet and the cognizance order in Criminal Case No. 548 of 2026, alleging that the offences (Sections 115(2), 352, 351(2) BNS) are non‑cognizable. The counsel argued that, per the explanation to Section 2(1)h of the BNSS, a police report in a non‑cognizable case is deemed a complaint and cannot be proceeded as a police case. The State did not contest these submissions. The Court examined the definition of "complaint" and held that the charge‑sheet must be treated as a complaint, rendering the magistrate’s cognizance order erroneous. Consequently, the cognizance/summoning order was set aside and the application was partly allowed, with a direction that the case may continue as a complaint if required.
Issues considered
- Whether offences under Sections 115(2), 352 and 351(2) BNS are non‑cognizable.
- Whether a police report (charge‑sheet) in respect of a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)h BNSS.
- Whether the magistrate erred in taking cognizance of the case as a State case.
Legislation cited
- BNSS — s. 115(2), 2(1)h, 351(2), 352
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- cognizance
- Section 2(1)h BNSS
- criminal procedure
- quash application
- High Court
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 38106 of 2026
Anil Kumar @ Anil Kumar Gupta And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Kailash Nath 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 18.02.2026 along with cognizance/summoning order
dated 16.03.2026 as well as entire proceedings of Criminal Case No.548 of
2026 (State vs. Anil Kumar Gupta and others) arising out of Case Crime
No.527 of 2025, under Sections 115(2), 352, 351(2) BNS, P.S. Badlapur,
District- Jaunpur, pending in the court of learned Additional Chief Judicial
Magistrate, Fourth, Jaunpur.
3. Learned counsel for applicants has made only one submission before the
Court that offences under Sections 115(2), 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. 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,-
NA528 No. 38106 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(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 16.03.2026 passed by
learned Additional Chief Judicial Magistrate, Fourth, Jaunpur against the
applicants on the basis of charge-sheet submitted by concerned Investigating
Officer under Sections 115(2), 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.
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 17, 2026
Saif
(Saurabh Srivastava,J.)
Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad
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