Allahabad High Court

DURGESH DUBEYversusSTATE OF U.P. AND ANOTHER

Decided: 10 September 2026
Bench: SAURABH SRIVASTAVA

Holding

A charge sheet relating to non‑cognizable offences under the BNSS is to be treated as a complaint, rendering the magistrate’s cognizance order invalid.

Summary

The applicant Durgesh Dubey filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 10‑03‑2026 and a cognizance order dated 01‑06‑2026 passed by a Judicial Magistrate in Jaunpur. The applicant contended that the offences alleged—Sections 115(2), 352, 351(3) and 324(4) of the BNSS—are non‑cognizable and that, under the explanation to Section 2(1)(h) of the BNSS, a police‑prepared charge sheet in such cases must be treated as a complaint, not as a police report. The State did not dispute these submissions. The Court held that the explanation indeed converts a police report of a non‑cognizable offence into a complaint, and therefore the magistrate erred in taking cognizance as a state case. Consequently, the cognizance order was set aside and the application was partly allowed, with a direction that the case may proceed as a complaint if required. The order does not preclude further proceedings in the appropriate complaint mode.

Issues considered

Whether the offences under Sections 115(2), 352, 351(3) and 324(4) BNSS are non‑cognizable.
Whether a charge sheet filed by a police officer for a non‑cognizable offence is deemed a complaint under the explanation to Section 2(1)(h) BNSS.
Whether the magistrate’s cognizance order is vitiated and should be set aside.

Legislation cited

BNSS — s. 2(1)(h)

Subjects

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

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 38363 of 2026

Durgesh Dubey
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Sarvesh Kumar 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 10.3.2026 and cognizance order dated 1.6.2026 passed by
learned Judicial Magistrate II, Court no. 18, Jaunpur as well as entire
proceeding of Case no. 575 of 2026 arising out of Case Crime no. 32 of
2026 under sections 115(2), 352, 351(3), 324(4) BNS, PS- Sarpataha,
District Jaunpur.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 115(2), 352, 351(3), 324(4) 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. 38363 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),
324(4) 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 1.6.2026 passed by learned Judicial
Magistrate II, Court no. 18, Jaunpur summoning the applicant on the basis of
chargesheet submitted by concerned Investigating Officer under Sections
115(2), 352, 351(3), 324(4) 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 11, 2026
Shaswat

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

Continue reading with your account

Checking your session…