Dinesh Mishra and 2 Others vs State of U.P. and Another — Allahabad HC (2025) — LawSathi Research

Dinesh Mishra 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/summoning dated 08-05-2025 set aside; Magistrate left free to 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); application under Section 528 BNSS finally disposed of with these observations.

Issue for consideration

Whether, where the charge-sheet alleges only non-cognizable offences punishable under Sections 115(2) and 352 B.N.S., the Magistrate's cognizance/summoning order passed on the police report is sustainable, or whether the report must be proceeded with as a complaint under Chapter XVI of the Bharatiya Nagarik Suraksha Sanhita.

Court's answer

The applicants' contention that the charged sections are non-cognizable was accepted as well founded; since the police report disclosed only non-cognizable offences, the Explanation (relied upon as interpreted by the Co-ordinate Bench in Santosh Kumar) required the charge-sheet to be treated as a complaint, and accordingly the order taking cognizance was set aside.

Ratio / Principle

The Magistrate remains free to pass a fresh order taking cognizance, 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 under which, where the written complaint is made by a public servant acting or purporting to act in discharge of official duties or by a Court, the Magistrate need not examine the complainant and the witnesses.

Detailed headnote1 paragraphs

Allahabad High Court (Deepak Verma, J.) — Application under Section 528 BNSS No. 45449 of 2025 seeking quashing of the entire proceeding in Case No. 178 of 2025 (State Vs. Dinesh Mishra and others), the charge sheet dated 29-12-2024 and the cognizance/summoning order dated 08-05-2025, arising out of N.C.R. No. 148 of 2024 under sections 115(2), 352 B.N.S., Police Station Padri, District Mirzapur. Held: the charged sections being non-cognizable, reliance on the Explanation (Explanation 2(h)) to the Bharatiya Nagarik Suraksha Sanhita — under which a police report disclosing after investigation the commission of a non-cognizable offence is deemed a complaint and the police officer deemed the complainant, as interpreted by a Co-ordinate Bench in Santosh Kumar and 2 others vs. State of U.P. and others (Application u/s 482 No. 45609 of 2018, decided 31.1.2019) — was well founded; the order taking cognizance was set aside, and the Magistrate was left 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(1) BNSS (written complaint by a public servant or Court — examination of complainant and witnesses not necessary). Application finally disposed of on November 18, 2025.

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 45449 of 2025

Dinesh Mishra And 2 Others

	Versus .....Applicant(s)
State of U.P. and Another	.....Opposite Party(s)
Counsel for Applicant(s)	: Shitlesh Pandey, Shivendra Nath Singh
Counsel for Opposite Party(s)	: G.A.

Court No. - 74

HON'BLE DEEPAK VERMA, J.

Heard Sri S.N. Singh, 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 proceeding of Case No. 178 of 2025 (State Vs. Dinesh Mishra and others) as well as the impugned Charge Sheet dated 29-12-2024 including the cognizance / summoning order dated 08-05-2025, arising out of N.C.R. No. 148 of 2024, under sections 115(2), 352 B.N.S., Police Station Padri, District Mirzapur, pending in the court of the Additional Civil Judge (J.D.), Court No.-3, Mirzapur.

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

NA528 No. 45449 of 2025

2

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 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.)

November 18, 2025

Nitin Verma

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