Allahabad High Court
VIRENDRA AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The charge sheet for the non‑cognizable offences must be treated as a complaint, rendering the magistrate’s cognizance order erroneous and liable to be set aside.
Summary
The applicants filed a Section 528 CrPC application seeking quash of the charge sheet dated 04‑09‑2023 and the cognizance order dated 26‑02‑2024 in State v Virendra et al., alleging that the offences (IPC 323, 504) are non‑cognizable. They contended that, per the explanation to Section 2(d) CrPC, a police report in a non‑cognizable case is deemed a complaint and therefore the magistrate erred in taking cognizance as a police case. The State did not contest this legal submission. The High Court held that the charge sheet must be treated as a complaint, set aside the cognizance/summoning order, and partially allowed the application, while noting that the case may still proceed as a complaint if required. The order was dated 28 September 2026.
Issues considered
- Whether offences under Sections 323 and 504 IPC 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(d) CrPC.
- Whether the magistrate erred in taking cognizance of the case as a police case.
- Whether the cognizance/summoning order can be set aside under Section 528 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 2(d), 528
Subjects
- Section 528 CrPC
- Section 2(d) CrPC
- non‑cognizable offence
- complaint vs police report
- IPC 323
- IPC 504
- quash of charge sheet
- cognizance error
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 39889 of 2026
Virendra And 2 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Anupam Kumar Shukla, Shiv Sharan
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
chargesheet dated 04.09.2023 and cognizance/summoning order dated
26.02.2024 along with entire proceedings of Case No.212 of 2024 (State
Vs. Virendra and another), arising out of Case Crime No. 445 of 2023,
under Section 323, 504 IPC, P.S. Tappal, District Aligarh.
3. Learned counsel for applicants has made only one submission before
the Court that offences under Sections 323, 504 I.P.C. are non-cognizable
and in view of the explanation to Section 2(d) Cr.P.C., the chargesheet
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 judgment 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 applicants.
5. Since the arguments as advanced on behalf of learned counsel for
applicants, are based on legal issue, no notice is required to be issued to
opposite party no.2.
6. Before proceeding further, the relevant provisions of Section 2 (d) of
NA528 No. 39889 of 2026
2
Cr.P.C. are being reproduced for ready reference as under:-
"2. Definitions.-In this Code, unless the context otherwise
requires,-
(d) "complaint" means any allegation made orally or in writing
to a Magistrate, with a view to his taking action under this
Code, 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 323,
504 I.P.C. 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 26.02.2024 passed in Case No.212 of
2024, (State Vs. Virendra and another), arising out of Case Crime No. 445
of 2023, summoning the applicants on the basis of chargesheet submitted
by concerned Investigating Officer under Sections 323, 504 I.P.C. 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 28, 2026
Ashish/-
(Saurabh Srivastava,J.)
Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad
Checking your session…