Allahabad High Court
ROSHANI CHAURASIYAversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
A charge‑sheet filed for a non‑cognizable offence under Sections 352 and 351(2) BNSS must be treated as a complaint, rendering the cognizance order invalid.
Summary
The applicant, Roshani Chaurasiya, filed an application under Section 528 of the BNSS seeking to quash the charge‑sheet dated 09‑11‑2025 and the cognizance/summoning order dated 29‑11‑2025 in a criminal case under Sections 352 and 351(2) of the BNSS. The applicant contended that these offences are non‑cognizable and, per the explanation to Section 2(1)h BNSS, a police‑prepared charge‑sheet in such matters must be treated as a complaint, not as a police case. The State opposed the prayer but did not dispute the legal submissions. The Court examined the definition of "complaint" and the explanatory clause, concluding that the charge‑sheet indeed qualifies as a complaint and that the magistrate erred in taking cognizance as a State case. Consequently, the cognizance/summoning 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 the lower court from continuing the proceedings in the appropriate complaint mode.
Issues considered
- Whether offences under Sections 352 and 351(2) BNSS are non‑cognizable.
- Whether a charge‑sheet filed by a police officer for a non‑cognizable offence is to be treated as a complaint under the explanation to Section 2(1)h BNSS.
- Whether the cognizance/summoning order passed by the Civil Judge is liable to be set aside.
Legislation cited
- BNSS — s. 2(1)h, 351(2), 352
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- Section 528
- quash order
- cognizance
- BNSS
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39009 of 2026
Roshani Chaurasiya
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Vinay Kumar Pandey
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 09.11.2025 and cognizance/summoning order dated
29.11.2025 along with entire proceedings of Case No.57005 of 2025,
arising out of Case Crime No.24 of 2025, under Sections 352, 351(2)
BNS, P.S. Mahila Thana, District Varanasi, pending in the court of
learned Civil Judge (S.D.)/FTC, Varanasi.
3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 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 applicant has placed
reliance upon the judgments passed in the case of Murli and others Vs.
State of U.P. and another, 2008 (61) ACC 54; Virendra Singh and
others Vs. State of U.P. and others, 2002 (45) ACC 609 and 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
NA528 No. 39009 of 2026
2
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."
6. In view of the above explanation, charge sheet submitted by the
concerned Investigating Officer in the present case under Sections 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
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 29.11.2025 passed
by learned Civil Judge (S.D.)/FTC, Varanasi against the applicants on the
basis of charge-sheet submitted by concerned Investigating Officer under
Sections 352, 351(2) 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.
September 30, 2026
Ashish/-
(Saurabh Srivastava,J.)
Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad
Checking your session…