SMT RUBI AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 46196 of 2025

Smt Rubi And Another
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)            :   Anuj Agarwal, Arvind Agrawal
Counsel for Opposite Party(s)       :   G.A., Manish Yadav

Court No. - 75
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for the applicants and Sri Manish Yadav, learned
cousnel appearing on behalf of opposite party no.2 as well as learned AGA
for the State.

2. The present application has been preferred for seeking quashing of
chargesheet dated 13.05.2025 and cognizance order dated 04.10.2025 along
with entire proceedings of Case No.37223 of 2025 (State Vs. Saroj and
others), arising out of Case Crime No.716 of 2024, under Section 115(2) of
BNS, P.S. Tundla, District Firozabad, pending in the court of learned Chief
Judicial Magistrate, Firozabad.

3. Learned counsel for applicants has made only one submission before the
Court that offence under Section 115(2) of BNS is non-cognizable and in
view of the explanation to Section 2(1)(h) of 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
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 as well as learned cousnel appearing on behalf of
opposite party no.2 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) of
BNSS are being reproduced for ready reference as under:-

     "2. Definitions.-(1) In this Sanhita, unless the context otherwise
                                                                                            NA528 No. 46196 of 2025
                                                                    2

                                         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."

                                    6. In view of the above explanation, charge sheet submitted by the concerned
                                    Investigating Officer in the present case under Section 115(2) of BNS,
                                    should have been treated as complaint and it is to be decided as complaint
                                    but 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. In view thereof, order dated 04.10.2025 passed in Case No.37223 of 2025
                                    (State Vs. Saroj and others), arising out of Case Crime No.716 of 2024
                                    summoning the applicants on the basis of chargesheet submitted by
                                    concerned Investigating Officer under Section 115(2) of BNS treating the
                                    same as State case, is set aside.

                                    8. Accordingly, the instant application is partly allowed.

                                    9. 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.

                                    March 19, 2026
                                    Vivek Kr.
                                                                                        (Saurabh Srivastava,J.)




Digitally signed by :-
VIVEK KUMAR
High Court of Judicature at Allahabad