Allahabad High Court

DAYA SHANKAR @ NANKU AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 29 September 2026
Bench: SAURABH SRIVASTAVA

Holding

The Court held that the offences are non‑cognizable, the charge‑sheet is to be treated as a complaint, and the cognizance order is set aside.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a cognizance order dated 4‑December‑2025 issued by the Gram Nyayalay, Kaushambi, which had treated a charge‑sheet as a police case. The applicants argued that the offences alleged—Sections 115(2), 352 and 351(2) of the BNSS—are non‑cognizable and, under the explanation to Section 2(1)(h) of the BNSS, a charge‑sheet for such offences must be treated as a complaint, not a police report. The State did not contest these legal submissions. The Court accepted the argument, held that the charge‑sheet is indeed a complaint, and that the learned Magistrate erred in taking cognizance as a State case. Consequently, the order of 4‑December‑2025 was set aside and the application was partly allowed, with a clarification that the case may proceed as a complaint if required. The decision rests on the interpretation of the BNSS provisions regarding non‑cognizable offences and the nature of police reports.

Issues considered

Whether offences under Sections 115(2), 352 and 351(2) of the BNSS are cognizable.
Whether a charge‑sheet filed by an investigating officer for non‑cognizable offences is deemed a complaint under Section 2(1)(h) of the BNSS.
Whether the cognizance order dated 4‑December‑2025 can be quashed.

Legislation cited

Bihar Negotiable Sanhita (BNSS) — s. 115(2), 2(1)(h), 351(2), 352, 528

Subjects

non‑cognizable offence
complaint vs police report
quashing cognizance
Section 528 application
charge‑sheet
criminal procedure

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39203 of 2026

Daya Shankar @ Nanku And 3 Others
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Shailesh Kumar Tripathi
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
cognizance order dated 4.12.2025 passed by learned Gram Nyayalay,
Chayal, Kaushambi as well as entire proceeding of Case no. 667 of 2025
(State vs. Dalveer Singh Yadav @ Babuji and others) arising out of Case
Crime no. 152 of 2025 under sections 115(2), 352, 351(2) BNS, PS- Pipari,
District Kaushambi.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 115(2), 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 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. 39203 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(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 4.12.2025 passed by learned Judicial Officer,
Gram Nyayalay, Chayal, Kaushambi summoning the applicants on the basis
of chargesheet submitted by concerned Investigating Officer under Sections
115(2), 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.

(Saurabh Srivastava,J.)
September 30, 2026
Shaswat

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

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