Allahabad High Court
TEJU PRAJAPATI AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge‑sheet filed under Sections 115(2), 352 and 351(2) BNSS, being a report of a non‑cognizable offence, must be treated as a complaint, rendering the cognizance order invalid.
Summary
The applicants filed an application under Section 528 of the BNSS seeking to quash a charge‑sheet dated 28‑10‑2025 and the cognizance/summoning order dated 09‑02‑2026 in Crime No. 136 of 2025. They contended that the offences alleged under Sections 115(2), 352 and 351(2) of the BNSS are non‑cognizable and, per the explanation to Section 2(1)h BNSS, a police report of a non‑cognizable offence must be treated as a complaint, not as a police case. The State did not dispute these submissions. The High Court held that the charge‑sheet indeed falls within the definition of a complaint and that the Additional Chief Judicial 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 clarification that the lower court may still proceed treating the matter as a complaint if required.
Issues considered
- Whether the offences under Sections 115(2), 352 and 351(2) BNSS are non‑cognizable.
- Whether a police report of a non‑cognizable offence is deemed a complaint under Section 2(1)h BNSS.
- Whether the charge‑sheet can be proceeded as a police case or must be treated as a complaint.
- Whether the cognizance/summoning order passed by the Additional Chief Judicial Magistrate is valid.
Legislation cited
- B.N.S.S. — s. 115(2), 2(1)h, 351(2), 352
Subjects
- non‑cognizable offence
- complaint vs police report
- quash charge‑sheet
- Section 2(1)h BNSS
- cognizance order
- High Court judgment
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39467 of 2026
Teju Prajapati And 3 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ajeet Shukla
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 28.10.2025 along with cognizance/summoning order
dated 09.02.2026 as well as entire proceedings of Case Crime No. 136 of
2025, under Sections 115(2), 352, 351(2) BNS, P.S. Singramau, District
Jaunpur, pending in the court of learned Additional Chief Judicial
Magistrate-III, Court No.14, Jaunpur.
3. Learned counsel for applicants 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 applicants 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 applicants.
5. Before proceeding further, the relevant provisions of Section 2(1)h BNSS
are being reproduced for ready reference as under:-
"2. Definitions.- (1) In this Sanhita, unless the context otherwise requires,-
NA528 No. 39467 of 2026
2
(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 applicants
and as such process to issue notice to opposite party no.2 is hereby dispensed
with.
8. In view thereof, cognizance/summoning order dated 09.02.2026 passed by
learned Additional Chief Judicial Magistrate-III, Court No.14,
Jaunpur against the applicants on the basis of charge-sheet 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.
September 17, 2026
Ashish/-
(Saurabh Srivastava,J.)
Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad
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