Ankur Agrawal and 3 Others vs State of U.P. and Another — Allahabad HC (2025) — LawSathi Research

Ankur Agrawal and 3 Others vs State of U.P. and Another — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Application under Section 528 BNSS finally disposed of: the order taking cognizance is set aside, and the Magistrate may take cognizance afresh, if he so chooses, by proceeding as a complaint case under Chapter XVI of the BNSS, keeping in mind Proviso(a) to Section 223 BNSS.

Issue for consideration

Whether the order taking cognizance and summoning order dated 04.12.2024 in Criminal Case No. 1448 of 2024, founded on a charge sheet dated 17.09.2024 in case crime no. 217 of 2024 under Sections 115, 352, 351(2) and 324(2) B.N.S. (allegedly non-cognizable offences), could stand, or whether the charge sheet must be treated as a complaint and cognizance taken afresh under Chapter XVI of the BNSS.

Court's answer

Since the charge sheet disclosed only non-cognizable offences and, per the Explanation to the BNSS, a police report disclosing a non-cognizable offence after investigation is deemed to be a complaint, the argument of the applicants was well founded: the order taking cognizance is set aside, and the Magistrate may pass an order taking cognizance, if he so chooses, by proceeding in the matter as a complaint case under Chapter XVI of the BNSS.

Key takeaways

While proceeding afresh as a complaint case, the Magistrate can also keep in mind Proviso(a) to Section 223 BNSS, under whose quoted text, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses.obiter¶14

Detailed headnote1 paragraphs

Quashing application under S.528 BNSS against the entire criminal proceeding in Criminal Case No. 1448 of 2024 (State versus Ankur Agrawal and others) and the Summoning Order dated 04.12.2024, arising from charge sheet dated 17.09.2024 in case crime no. 217 of 2024 under Sections 115, 352, 351(2) and 324(2) B.N.S., P.S. Phaphamau, District Prayagraj, pending before A.C.J.M. Prayagraj. Held: the charged section is non-cognizable; per the Explanation to the BNSS (Explanation 2(h)), 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 the complainant. Relying on the Co-ordinate Bench decision in Application u/s 482 No. 45609 of 2018 (Santosh Kumar and 2 others vs. State of U.P. and others), decided 31.1.2019, the Court set aside the order taking cognizance and left the Magistrate free to take cognizance, if he so chooses, by proceeding as a complaint case under Chapter XVI of the BNSS, keeping in mind Proviso(a) to Section 223 BNSS. Application finally disposed of (order dated 14.8.2025, Deepak Verma, J.).

Neutral Citation No. - 2025:AHC:138845

Court No. - 72

Case :- APPLICATION U/S 528 BNSS No. - 11840 of 2025

Applicant :- Ankur Agrawal And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anoop Gupta,Jitendra Singh Gaur Counsel for Opposite Party :- G.A.

Hon'ble Deepak Verma,J.

Supplementary affidavit, filed today, is taken on record.

Heard Sri Rohan Gupta holding brief of Sri Jitendra Singh Gaur, learned counsel for the applicants and learned A.G.A. for the State.

The present 528 BNSS application has been filed to quash the entire Criminal proceeding of Criminal Case No. 1448 of 2024 headed as State versus Ankur Agrawal and others, Police Station Phaphamau, District Prayagraj as well as Summoning Order dated 04.12.2024, in connection with charge sheet dated 17.09.2024, in case crime no. 217 of 2024, Under Sections 115, 352, 351(2) and 324(2) B.N.S., Police Station Phaphamau, District Prayagraj, pending in the court of A.C.J.M. Prayagraj.

Learned counsel for the applicants submitted that charged section is non-cognizable section and the learned Magistrate may pass an order taking cognizance, if he so desires, by proceeding under Chapter XVI of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Reliance has been placed to Explanation 2(h) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which reads as follows:-

"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."

Learned A.G.A. has stated that no useful purpose would be served in issuing notice to the opposite party no.2 as it will only delay the proceedings of the present case.

Therefore, on the basis of aforesaid Explanation, which has been interpreted by Co-ordinate Bench of this Court in Application u/s 482 No. 45609 of 2018 (Santosh Kumar and 2 others vs. State of

U.P. and others) decided on 31.1.2019, wherein it has been held that when the charge-sheet is only of non-cognizable offence, in view of the aforesaid provision, the charge sheet should be treated as a complaint.

The argument of learned counsel for the applicants is well founded and the order taking cognizance is set aside. Now, the Magistrate may pass an order taking cognizance, if he so chooses, by proceeding in this matter as a complaint case under Chapter XVI of the Bharatiya Nagarik Suraksha Sanhita (BNSS). He can also keep in mind Proviso(a) to Section 223 BNSS, which reads as follows:-

"Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses."

(a) If a public servant acting or purporting to act in discharge of his official duties or a Court has made the complaint;"

With these observations, this application under Section 528 BNSS is finally disposed of.

Order Date :- 14.8.2025 Nitin Verma

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