VIKASH SINGH AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 38606 of 2026

Vikash Singh And Another
                                                           .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)          : Balwant Singh, Lokesh Kumar Patel
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 19.09.2025 and cognizance order dated 25.03.2026
along with entire proceedings of Criminal Case No.5709 of 2026 (State
Vs. Vikash Singh and Another), arising out of Case Crime No.292 of
2025, under Section 115(2), 352 of BNS, P.S. Sikandra, District Agra,
pending in the court of learned Additional Chief Judicial Magistrate,
Agra.

3. Learned counsel for applicants has made only one submission before
the Court that offences under Section 115(2), 352 of BNS are non-
cognizable and in view of the explanation to Section 2(1)(h) of 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 judgment passed in the case of Shakila Bano
and others Vs. State of U.P. and another, 2008 (61) ACC 636.

4. Since the argument as advanced on behalf of learned counsel for
applicants, is based on legal issue, no notice is required to be issued to
opposite party no.2.

5. Although, learned AGA opposed the prayer sought through the instant
application but did not dispute the submissions so made by learned
                                                                                            NA528 No. 38606 of 2026
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                                    counsel for applicants.

                                    6. Before proceeding further, the relevant provisions of Section 2(1)(h) of
                                    BNSS are being reproduced for ready reference as under:-

                                           "2. Definitions.-(1) 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 Section 115(2),
                                    352 of BNS, should have been treated as complaint and it is to be decided
                                    as complaint but 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 25.03.2026 passed in Criminal Case
                                    No.5709 of 2026 (State Vs. Vikash Singh and Another), arising out of
                                    Case Crime No.292 of 2025, summoning the applicants on the basis of
                                    chargesheet submitted by concerned Investigating Officer under Section
                                    115(2), 352 of 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 14, 2026
                                    Vivek Kr.




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