MOHD MUSTAKEEMversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 38109 of 2026

Mohd Mustakeem
                                                                .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)      : Apoorv Singh,             Ashutosh      Mishra,
                                Ashwani Mishra
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 23.09.2024 and cognizance/summoning order dated
29.09.2025 along with entire proceedings of Case No.603 of 2025 (State vs.
Sajid Ali and Others) arising out of Case Crime No.177 of 2024, under
Section 351(2) BNS, P.S. Phaphamau, District- Prayagraj, pending in the
court of learned Additional Chief Judicial Magistrate Court No.6, Praygaraj.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Section 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. 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,-
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                                                                    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 Section 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 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 29.09.2025 passed by
                                    learned Additional Chief Judicial Magistrate Court No.6, Praygaraj against
                                    the applicants on the basis of charge-sheet submitted by concerned
                                    Investigating Officer under Section 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