SHIV KUMAR GOYALversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 38539 of 2026

Shiv Kumar Goyal
                                                           .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)      : Gajendra Kumar Gautam, Kamlesh
                                Gautam
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
chargesheet dated 20.06.2021 and cognizance/summoning order dated
28.10.2021 along with entire proceedings of Case No.18924 of 2021,
arising out of 353 of 2021, under Section 188, 447 IPC, P.S. Vijay Nagar,
Ghaziabad, pending in the court of learned Additional Civil Judge (Senior
Division) Vth, Ghaziabad.

3. Learned counsel for applicants has made only one submission before
the Court that offences under Sections 188, 447 IPC are non-cognizable
and in view of the explanation to Section 2(d) Cr.P.C., the chargesheet
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 judgment 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. Since the arguments as advanced on behalf of learned counsel for
applicants, are based on legal issue, no notice is required to be issued to
opposite party no.2.
                                                                                              NA528 No. 38539 of 2026
                                                                        2


                                    6. Before proceeding further, the relevant provisions of Section 2 (d) of
                                    Cr.P.C. are being reproduced for ready reference as under:-

                                               "2. Definitions.-In this Code, unless the context otherwise
                                               requires,-

                                               (d) "complaint" means any allegation made orally or in writing
                                               to a Magistrate, with a view to his taking action under this
                                               Code, 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 188,
                                    447 IPC 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 28.10.2021 passed in Case No.18924 of
                                    2021, arising out of 353 of 2021, summoning the applicants on the basis
                                    of chargesheet submitted by concerned Investigating Officer under
                                    Sections 188, 447 IPC 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.
                                    September 21, 2026
                                    Ashish/-

                                                                                           (Saurabh Srivastava,J.)




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