MAHENDRA KUMAR AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER

       HIGH COURT OF JUDICATURE AT ALLAHABAD

         APPLICATION U/S 528 BNSS No. - 49614 of 2025



Mahendra Kumar And 2 Others
                                                      .....Applicant(s)
                                Versus
State of U.P. and Another
                                                         .....Opposite
                                                               Party(s)

Counsel for Applicant(s)                 :   Awadh Bihari Pandey
Counsel for Opposite Party(s)            :   G.A.

Court No. - 74


                  HON'BLE RAJEEV BHARTI, J.

1. Heard learned counsel for the applicants and learned A.G.A.
and perused the record.

2. This application has been filed by applicants with a prayer for
quashing the cognizance/summoning order dated 27.09.2023 as
well as charge sheet dated 17.09.2022 as well as entire
proceeding of Case No.142273 of 2023 (State Vs. Mahendra &
others), arising out of N.C.R. No.117 of 2021, under Sections
323, 504 I.P.C., Police Station- Nawabganj, District- Kanpur
Nagar, pending before the Court of Metropolitan Magistrate,
Room No.3, Kanpur Nagar.

3. Learned counsel for the applicants submitted that the
applicants have been falsely implicated in NCR No.117 of 2021,
under Sections 323 and 504 I.P.C., P.S. -Nawabganj, District-
Jhansi, in which upon investigation charge-sheet has been
submitted under Sections 323 and 504 I.P.C. and both the
offences are bailable and non-cognizable and despite the same,
the police submitted a charge sheet upon which the learned
Magistrate mechanically took cognizance and issued summons
vide order dated 27.09.2023, without following the mandatory
procedure prescribed under law as per 1st Schedule of Cr.P.C.
and accordingly, the provisions of Explanation to Section 2(d) of
Cr.P.C., the charge-sheet filed before the Magistrate is to be
treated as complainant and so the order of Magistrate taking
cognizance dated 27.09.2023 is liable to be quashed.
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4. Per contra, learned A.G.A. though did not dispute the legal
position provided in Section 2(d) of Cr.P.C. but contended that
the application under Section 528 BNSS (akin to Section 482
Cr.P.C.) for quashing the proceedings of criminal case is
malafide and misconceived and is liable to be dismissed.

5. Before proceeding further, the relevant provisions of Section 2
(d) of Cr.P.C. are being reproduced for ready reference as under:-

     "Section 2(d) of Code of Criminal Procedure, 1973

     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."

6. Upon hearing learned counsel for the parties and perusal of
record, I find that it may not be disputed that offences under
Sections 323 & 504 I.P.C. are bailable and non-cognizable and so
the provisions of explanation to Section 2(d) are applicable to the
case. The Magistrate has taken cognizance without considering
the provisions of Section 2(d) Cr.P.C. and its explanation clause.
Undoubtedly in view of the provisions of Section 2(d) Cr.P.C.,
the Magistrate was required to adopt the procedure of a complaint
case as provided. Though the present application has been filed
under Section 528 of BNSS 2023, the impugned charge sheet and
the cognizance order were passed prior to enforcement of the said
enforcement. Therefore, the legality of the impugned order is
required to be tested on the anvil of the provisions of the Code of
Criminal Procedure 1973.

7. Even otherwise, Section 531 of the BNSS 2023, which
corresponds to Section 465 of the Code of Criminal Procedure,
saves only such errors, omissions or irregularities which do not
occasion failure of justice.

8. In the present case, the Magistrate has failed to follow the
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                             3

mandatory procedure prescribed under the Explanation to Section
2(d) Cr.P.C. while taking cognizance upon a police report in
respect of non-cognizable offences. Such failure goes to the very
root of the jurisdiction and cannot be treated as a mere procedural
irregularity curable under Section 531 BNSS as held by Hon'ble
the Supreme Court which saves only those irregularities that do
not occasion failure of justice. A similar view is taken by this
court in the case of Ashish Kumar Tiwari @ Rahul And 27
Others vs. State Of U.P. Thru. A.C.S/Prin. Secy. Deptt. Home
Govt. Lko. And Another 2024 Live Law (AB) 396. The
relevant paragraphs are as follows:-

     "27. The provision in sub-section (2) of Section 155 of
     Cr.P.C., for asking permission of the Court to investigate a
     non-cognizable offence is mandatory in nature. Therefore,
     the investigation of a non-cognizable offence by the police
     without prior permission of the competent Magistrate is
     illegal. Even merely accepting the charge sheet by the
     Magistrate and taking cognizance of the offence does not
     validate the proceeding. Even subsequent permission by the
     Magistrate cannot cure the illegality. As could be seen from
     Section 460 of Cr.P.C., these defects of not taking permission
     before investigating a non-cognizable offence is also not
     curable. Though the charge sheet is filed after due
     investigation without prior permission of the Court, and the
     Magistrate has accepted the charge sheet and taken
     cognizance, it does not mean to show permission is granted
     by the Magistrate to investigate such non- cognizable
     offence. Therefore, an investigation into the non-cognizable
     offence without written order of the Magistrate is strictly
     contrary to the provision of this Section. 28. This Court
     further finds that the above said two offences are non
     cognizable offences. Therefore, as per Section 155(2) of
     Cr.P.C., the police have no right or jurisdiction to investigate
     the matter, without prior permission of the Magistrate, who
     has got jurisdiction to try those offences. Therefore, the
     entire charge sheet filed by the police is vitiated by serious
     incurable defects and procedural irregularities."

9. In view of the aforesaid discussion, this Court is of the
considered opinion that the cognizance and summoning order
dated 27.09.2023, passed on a police report arising out of an NCR
relating to non-cognizable offences, without following the
procedure of a complaint case, is illegal and unsustainable in law.

10. Accordingly, the application is allowed and the impugned
order dated 27.09.2023 passed in Case No.142273 of 2023 (State
Vs. Mahendra & others), arising out of N.C.R. No.117 of 2021,
under Sections 323, 504 I.P.C., Police Station- Nawabganj,
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                                        District- Kanpur Nagar is hereby quashed.

                                        11. The matter is remitted to the court concerned to proceed
                                        afresh in accordance with law, treating the police report as a
                                        compliant in terms of the Explanation to Section 2(d) Cr.P.C.

                                        12. Let a copy of this order be sent to court below for proceeding
                                        with the case in accordance with law.

                                        January 16, 2026
                                        Anand Sri./-

                                                                                        (Rajeev Bharti,J.)




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