Sandeep and Another vs State of U.P. and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 22889 of 2025

Sandeep And Another .....Applicant(s)
Versus
State of U.P. and Another .....Opposite Party(s)
Counsel for Applicant(s) : Jitendra Kumar, Keshav Hari Dixit, Purushottam Dixit
Counsel for Opposite Party(s) : G.A.
Court No.- 71

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HON'BLE RAJ BEER SINGH, J.

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

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The present application under Section - 528 BNSS has been filed with the following prayer :-

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" It is, therefore, most respectfully prayed that this
Hon'ble Court may graciously be pleased to allow the
application and may quash the Charge sheet dated 31.12.2024
as well as cognizance order dated 22.05.2025 (State Versus
Rajeev and others), arising out of case crime no. 290 of
2024, Under Section 115(2), 352, 351 (3), 3(5) and 131 of
B.N.S. Police Station - Jaswantnagar, District - Etawah,
pending in the court of Additional Chief Judicial
Magistrate, Court No.02, Etawah, and / or pass such order
and further order as this Hon'ble Court may deem fit and
proper."

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It is submitted by learned counsel for the applicants that first information report of this case has been lodged making false and baseless allegations. After investigation, police have submitted charge sheet under Sections - 115(2), 352, 351(3), 3(5), 131 BNS and as per Schedule of BNSS, all these offences are non cognizable and thus, in view of provisions of Section -

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NA528 No. 22889 of 2025

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2

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2(h) (explanation) BNSS, the charge sheet has to be deemed as a complaint but learned Magistrate has taken cognizance as a State case. Referring to these facts, it was submitted that impugned summoning order is against law and thus, liable to be quashed.

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Learned AGA has opposed the application and submitted that in view of allegations made in the first information report and material on record, a prima facie case is made out and there is no illegality or perversity in the impugned summoning order.

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I have considered the rival submissions and perused the record.

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In the present case, perusal of record shows that first information report of this case was registered for offence under Sections - 115(2), 352, 351(3), 3(5), 131 BNS. After investigation, police have submitted charge sheet for offences under Section - 115(2), 352, 351(3), 3(5), 131 BNS. Learned Magistrate took cognizance for offence under Section 115(2), 352, 351(3), 131, 3(5) BNS and summoned the applicants. The only contention of learned counsel for applicants is that all the said offences are non-cognizable and thus, the charge sheet submitted in this case has to be treated as a complaint and cognizance has to be taken accordingly under Section - 210 (1)(a) of BNSS / 190(1)(a) Cr.P.C. and procedure prescribed for complaint case has to be followed with. Learned counsel for applicants submitted that as per Schedule of BNS, Section 351(3) BNS has been shown a non-cognizable offence. Similarly the offences under Sections - 115(2), 352, 131, 3(5) BNS have also been shown as non-cognizable. It was submitted that the notification, by which offence under Section

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506 I.P.C. was made cognizable for the State of U.P., cannot be applied to Section - 351(3) BNS as the entire Indian Penal Code has been repealed.

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It would be relevant to mention that in view of Notification dated 31.07.1989, the offence under Section - 506 I.P.C., if committed in the State of U.P., was a cognizable offence. Said Notification dated 31.07.1989 was upheld by the Full Bench of this Court in case of Mata Sewak Upadhyay Vs. State of U.P. 1995 JIC 1168. With effect from 01.07.2024 Indian Penal Code was repealed and BNS (Bhartiya Nyaya Sanhita) was enforced. In case of Vinay Kumar Pandey Vs. State of U.P. and 4 Others (Criminal Misc. Writ Petition No. 13827 of 2024), decided on 03.10.2024, the Division Bench of this Court has considered a number of judgments and in Paragraph No.19 held as under :-

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"19. From the above analysis, it is clear that the
notification dated 31.7.1989, issued in exercise of power
under Section 10 of the Criminal Law (Amendment) Act under
the first Schedule of Cr.P.C., 1973, will be deemed to be
issued for amending schedule-I of the B.N.S.S. making
Section 351(2) B.N.S. (corresponding Section 506 I.P.C.) as
cognizable and non bailable and such notification is
already saved by Section 531(2) B.N.S.S. which is pari
material of Section 484 of Cr.P.C., 1973. Therefore, in
the State of U.P., Section 351(2) B.N.S. will remain
cognizable and non bailable in view of the notification
dated 31.7.1989 which was in force at the time of repealing
the Cr.P.C. by B.N.S.S."

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This Court is bound by the law laid down in aforesaid case of Vinay Kumar Pandey (supra). In view of aforesaid pronouncement, it is apparent that offence under Section - 351(2) BNS, if committed in the State of U.P., has to be treated as a cognizable offence. Section 351(3) BNS is an extension of Section 351(2) BNS and in fact Section 351(3) BNS is aggravated form of Section 351(2) BNS. Thus, in view of aforesaid law, Section 351(3) BNS is also to be considered as

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cognizable offence, if committed in India. Learned counsel has referred case of Brij Mohan Vs. State of UP 2024:AHCLKO-3380, that case deals with Section 506 of Indian Penal Code. In view of aforesaid judgment of Division Bench, this Court is bound to follow the law laid down therein. As one of the offence (Section 351(3) BNS) is cognizable thus, the aforesaid entire case has to be considered as a cognizable offence. In view of these facts and circumstances, learned Magistrate has correctly taken cognizance as a State case under Section 210(1)(b) BNSS / 190(1)(b) Cr.P.C. as a State case. In view of these facts and circumstances, it cannot be said that impugned cognizance / summoning order is suffering from any material illegality or perversity. There is nothing to show that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by invoking powers under Section - 528 BNSS. The application under Section - 528 BNSS lacks merits and thus, liable to be dismissed.

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Accordingly, the application under Section - 528 BNSS is dismissed .

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September 3, 2025 S Rawat

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(Raj Beer Singh,J.)

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Sandeep and Another v. State of U.P. and Another

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Sandeep and Another v. State of U.P. and Another

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