Allahabad High Court

RADHA KRISHNA GUPTA AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 15 September 2026
Bench: SAURABH SRIVASTAVA

Holding

The charge sheet filed under Sections 115(2), 352 and 351(3) BNSS is to be treated as a complaint, and the magistrate’s cognizance order is set aside.

Summary

The applicants filed an application under Section 528 of the BNSS seeking to quash a charge sheet dated 19‑06‑2025 and a cognizance order dated 08‑09‑2025 issued by the Chief Judicial Magistrate, Shahjahanpur, in a case under Sections 115(2), 352 and 351(3) of the BNSS. The applicants contended that these offences are non‑cognizable and, under the explanation to Section 2(1)(h) of the BNSS, the charge sheet should be treated as a complaint rather than a police report, citing Shakila Bano v. State of U.P. The opposite party did not dispute the legal submissions. The High Court held that the charge sheet indeed falls within the definition of a complaint and that the magistrate erred in taking cognizance as a State case. Consequently, the order of 08‑09‑2025 was set aside and the application was partly allowed, with a direction that the case may proceed as a complaint if required.

Issues considered

Whether offences under Sections 115(2), 352 and 351(3) of the BNSS are non‑cognizable.
Whether a charge sheet filed by a police officer in respect of 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. 115(2), 2(1)(h), 351(3), 352, 528

Subjects

non‑cognizable offence
charge sheet
complaint
cognizance
criminal procedure
Section 528
quashing
magistrate error

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39211 of 2026

Radha Krishna Gupta And 2 Others
.....Applicant(s)
Versus

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

Counsel for Applicant(s) : Kushagra Chauhan, Sandhya Mishra
Counsel for Opposite Party(s) : G.A.

Court No. - 79
HON'BLE SAURABH SRIVASTAVA, J.

1. This matter is being taken up out of turn from the category of cases
which have been mentioned in the morning on account of urgency. Heard
learned counsel for parties.

2. The present application has been preferred for seeking quashing of charge
sheet dated 19.6.2025 and cognizance order dated 8.9.2025 passed by
learned Chief Judicial Magistrate, Court no. 14, Shahjahanpur as well as
entire proceeding of Case Crime no. 0257 of 2025 under sections 115(2),
352, 351(3) BNS, PS- Sadar Bazar, District Shahjahanpur.

3. Learned counsel for applicant has made only one submission before the
Court that offences under Sections 115(2), 352, 351(3) 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. 39211 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(3)
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 8.9.2025 passed by learned Chief Judicial
Magistrate, Court no. 14, Shahjahanpur summoning the applicants on the
basis of chargesheet submitted by concerned Investigating Officer under
Sections 115(2), 352, 351(3) 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 16, 2026
Shaswat

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

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