Mithai Lal and 2 Others Vs State of U.P. and Another — Allahabad HC (2025) — LawSathi Research

Mithai Lal and 2 Others Vs State of U.P. and Another — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Order taking cognizance dated 01.03.2025 set aside; Magistrate left free to take cognizance, if he so chooses, by proceeding as a complaint case under Chapter XVI BNSS (keeping in mind Proviso (a) to Section 223(1) BNSS); application under Section 528 BNSS finally disposed of with these observations.

Issue for consideration

Whether the charge sheet dated 10.09.2024 and the cognizance order dated 01.03.2025 in a case charging only non-cognizable offences (Sections 115(2), 352 BNS) are sustainable, or whether the police report/charge sheet must be treated as a complaint and cognizance taken afresh under Chapter XVI BNSS.

Court's answer

The argument of the applicants that the charged sections are non-cognizable is well founded, and the order taking cognizance is set aside.

Ratio / Principle

The Magistrate may now take cognizance afresh, if he so chooses, by proceeding in the matter as a complaint case under Chapter XVI of the Bharatiya Nagarik Suraksha Sanhita, keeping in mind Proviso (a) to Section 223(1) BNSS.

Key takeaways

On the basis of the Explanation to the Bharatiya Nagarik Suraksha Sanhita (relied on as Explanation 2(h)), a police report disclosing, after investigation, only a non-cognizable offence is deemed a complaint with the police officer deemed the complainant; accordingly the charge sheet in this case is to be treated as a complaint, as interpreted by the Co-ordinate Bench in Santosh Kumar (supra).ratio¶11

Detailed headnote1 paragraphs

Quashing application under Section 528 BNSS against charge sheet dated 10.09.2024 under Sections 115(2), 352 BNS (non-cognizable offences) and cognizance order dated 01.03.2025 passed by Judicial Magistrate, Shahganj, Jaunpur in Case No. 08 of 2025 arising out of NCR No. 153 of 2024: HELD, relying on the Explanation to the Bharatiya Nagarik Suraksha Sanhita (a police report disclosing only a non-cognizable offence is deemed a complaint, the police officer being deemed the complainant), as interpreted by a Co-ordinate Bench 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, a charge sheet relating only to a non-cognizable offence is to be treated as a complaint; the argument of the applicants was well founded and the order taking cognizance was set aside. The Magistrate may take cognizance afresh, if he so chooses, by proceeding as a complaint case under Chapter XVI BNSS, keeping in mind Proviso (a) to Section 223(1) BNSS (written complaint need not entail examination of complainant and witnesses). Application finally disposed of (Deepak Verma, J.; September 25, 2025).

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 23746 of 2025

Mithai Lal And 2 Others

.....Applicant(s)

	Versus
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s)	: Brij Raj Singh, Yadav	Kaushlendra Kumar
Counsel for Opposite Party(s)	: G.A.

Court No. - 72

HON'BLE DEEPAK VERMA, J.

Heard Sri Jai Raj, learned counsel for the applicants and learned A.G.A. for the State.

The present 528 BNSS application has been filed to quash the Charge sheet dated 10.09.2024 and its further proceedings in Case No. 08 of 2025 and the Cognizance order dated 01.03.2025, under Sections 115(2), 352 BNS passed by Judicial Magistrate Village Court Shahganj, Police StationKhutahan, District- Jaunpur, arising out of NCR no. 153 of 2024 (State Vs. Mithai Lal and others).

Learned counsel for the applicants has 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. Reliance has been placed to Explanation 2(h) of the Bharatiya Nagarik Suraksha Sanhita, 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.

NA528 No. 23746 of 2025

2

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 applicant 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. He can also keep in mind Proviso(a) to Section 223(1) 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 .

(Deepak Verma,J.)

September 25, 2025

Aditya

Digitally signed by :- ADITYA KUSHWAHA High Court of Judicature at Allahabad