Mohit Tripathi vs State of Up and Another — Allahabad HC (2025) — LawSathi Research

Mohit Tripathi vs State of Up and Another — Allahabad HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Application under Section 528 BNSS partly allowed; cognizance/summoning order dated 29.07.2025 passed by the Judicial Magistrate 7th, Kanpur Nagar against the applicants on the basis of the charge-sheet (treating it as a State case) set aside; notice to opposite party no.2 dispensed with; liberty reserved to proceed as a complaint case in accordance with law.

Issue for consideration

Whether, the offences under Sections 115(2) and 351(2) BNS being non-cognizable, the charge-sheet filed by the Investigating Officer cannot proceed as a police case and must instead be proceeded with as a complaint case under the Explanation to Section 2(1)(h) BNSS, rendering cognizance taken as a State case illegal.

Ratio / Principle

In view of the Explanation to Section 2(1)(h) BNSS, the charge-sheet submitted by the concerned Investigating Officer in the present case under Sections 115(2), 351(2) BNS shall be treated as a complaint and is to be decided as a complaint.

Key takeaways

The learned Magistrate fell into legal error by taking cognizance as a State case, and the orders passed by him are therefore liable to be set aside.ratio¶18
The setting aside of the cognizance order shall not preclude the learned court concerned from proceeding with the case treating it as a complaint case, if required, in accordance with law.obiter¶22

Detailed headnote1 paragraphs

High Court of Judicature at Allahabad (Saurabh Srivastava, J.; decided November 13, 2025) partly allowed an application under Section 528 BNSS (No. 31935 of 2025) by Mohit Tripathi seeking quashing of the charge-sheet dated 02.07.2025 and the cognizance/summoning order dated 29.07.2025 in Case Crime No. 26 of 2025 (Sections 115(2), 351(2) BNS, P.S. Pheelkhana, District Kanpur Nagar). Proceeding on the Explanation to Section 2(1)(h) BNSS, under which a police report disclosing, after investigation, the commission of a non-cognizable offence is deemed a complaint and the police officer making it is deemed the complainant, the Court held that the charge-sheet submitted by the Investigating Officer for the non-cognizable offences under Sections 115(2) and 351(2) BNS must be treated and decided as a complaint, and that the Magistrate fell into legal error by taking cognizance as a State case. The cognizance/summoning order was set aside, with the clarification that the order does not preclude the court concerned from proceeding with the case as a complaint case, if required, in accordance with law; notice to opposite party no.2 was dispensed with since the objection raised was purely legal. The learned AGA opposed but did not dispute the submission; reliance placed by counsel on Murli (2008 (61) ACC 54), Virendra Singh (2002 (45) ACC 609) and Shakila Bano (2008 (61) ACC 636) was recorded.

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 31935 of 2025

Mohit Tripathi

.....Applicant(s)

Versus

State of U.P. and Another	.....Opposite Party(s)
Counsel for Applicant(s)	: Ajay Kumar Mishra
Counsel for Opposite Party(s)	: G.A.
Court No.- 77

HON'BLE SAURABH SRIVASTAVA, J.

Heard learned counsel for the applicant and learned AGA for the State.

The present application has been preferred for seeking quashing of charge-sheet dated 02.07.2025 and cognizance/summoning order dated 29.07.2025 along with entire proceedings arising out of Case Crime No.26 of 2025, under Sections 115(2), 351(2) BNS, P.S. Pheelkhana, DistrictKanpur Nagar, pending in the court of learned Judicial Magistrate 7th, Kanpur Nagar.

Learned counsel for applicant has made only one submission before the Court that offences under Sections 115(2), 351(2) BNS are non-cognizable and in view of the explanation to Section 2(1)h 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 judgments passed in the case of Murli and others Vs. State of U.P. and another, 2008 (61) ACC 54; Virendra Singh and others Vs. State of U.P. and others, 2002 (45) ACC 609 and Shakila Bano and others Vs. State of U.P. and another, 2008 (61) ACC 636 .

Although, learned AGA opposed the prayer sought through the instant application but did not dispute the submissions so made by learned counsel for applicant.

Before proceeding further, the relevant provisions of Section 2(1)h BNSS are being reproduced for ready reference as under:-

NA528 No. 31935 of 2025

2

"2. Definitions.- (1) In this Sanhita, unless the context otherwise 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."

In view of the above explanation, charge sheet submitted by the concerned Investigating Officer in the present case under Sections 115(2), 351(2) BNS shall be treated as complaint and it is to be decided as complaint and 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.

Since the legal issue has been raised by learned counsel for the applicant and as such process to issue notice to opposite party no.2 is hereby dispensed with.

In view thereof, cognizance/summoning order dated 29.07.2025 passed by learned Judicial Magistrate 7th, Kanpur Nagar against the applicants on the basis of charge-sheet submitted by concerned Investigating Officer under Sections 115(2), 351(2) BNS treating the same as State case, is set aside.

Accordingly, the instant application is partly allowed .

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.

November 13, 2025 Saif

(Saurabh Srivastava,J.)

Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad