Allahabad High Court
RAM LAL MISHRA AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge‑sheet for the non‑cognizable offences is to be treated as a complaint, and the magistrate’s order taking cognizance as a State case is set aside.
Summary
The applicants Ram Lal Mishra and another filed an application under Section 528 of the BNSS seeking to quash a charge‑sheet dated 6 February 2026 and a summoning order dated 11 June 2026 in criminal case No. 635 of 2026, which alleged offences under Sections 351(3) and 324(2) of the BNSS. They contended that these offences are non‑cognizable and, according to the explanation to Section 2(1)(h) of the BNSS, a police report in such matters is deemed a complaint, so the charge‑sheet cannot be treated as a police case. The State did not dispute these legal submissions. The Court held that the charge‑sheet must be treated as a complaint and that the magistrate erred in taking cognizance as a State case. Accordingly, the summoning order was set aside and the application was partly allowed, with a clarification that the case may proceed as a complaint if required. The order does not preclude further proceedings in the appropriate mode.
Issues considered
- Whether offences under Sections 351(3) and 324(2) of the BNSS are cognizable.
- Whether a charge‑sheet filed for a non‑cognizable offence is to be treated as a complaint under the explanation to Section 2(1)(h) of the BNSS.
- Whether the magistrate erred in taking cognizance of the matter as a State case.
Legislation cited
- BNSS — s. 2(1)(h), 324(2), 351(3)
Subjects
- non‑cognizable offence
- charge‑sheet
- complaint
- Section 528 application
- quash order
- magistrate cognizance
- criminal procedure
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39192 of 2026
Ram Lal Mishra And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ashish Kumar Pandey, Shyamdhar
Pandey
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 charge
sheet dated 6.2.2026 and summoning order dated 11.6.2026 passed in Case
no. 635 of 2026 (State vs. Ram Lal and another) arising out of Case Crime
no. 19 of 2026 under sections 351(3), 324(2) BNS, PS- Kotwali Chunar,
District Mirzapur.
3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 351(3), 324(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. 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.
6. Before proceeding further, the relevant provisions of Section 2(1)(h)
NA528 No. 39192 of 2026
2
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 351(3), 324(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.
8. In view thereof, order dated 11.6.2026 passed by learned First Additional
Chief Judicial Magistrate, Mirzapur summoning the applicants on the basis
of chargesheet submitted by concerned Investigating Officer under Sections
351(3), 324(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.
(Saurabh Srivastava,J.)
September 30, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
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