Vipul and Another Vs State of U.P. and Another — Allahabad HC (2026) — LawSathi Research

Vipul and Another Vs State of U.P. and Another — Allahabad HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Application under Section 528 BNSS partly allowed; cognizance/summoning order dated 22.4.2025 passed by the Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad set aside; charge-sheet to be treated and decided as a complaint, with liberty to the court below to proceed as a complaint case in accordance with law.

Issue for consideration

Whether the charge-sheet submitted by the Investigating Officer for offences under Sections 352, 351(3) BNS, alleged to be non-cognizable, must be treated as a complaint under the Explanation to Section 2(1)(h) BNSS and cannot proceed as a police/State case, rendering the Magistrate's cognizance as a State case legally erroneous.

Court's answer

In view of the Explanation to Section 2(1)(h) BNSS, the charge-sheet submitted by the Investigating Officer in the present case under Sections 352, 351(3) BNS shall be treated as a complaint and decided as such; the learned Magistrate fell in legal error by taking cognizance as a State case, and the orders passed by him are liable to be set aside.

Ratio / Principle

The order dated 22.4.2025 passed by the Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad, summoning the applicants on the basis of the charge-sheet submitted by the Investigating Officer under Sections 352, 351(3) BNS treating the same as a State case, is set aside.

Key takeaways

The setting aside of the order does not preclude the learned court concerned from proceeding with the case treating it as a complaint case, if required, in accordance with law.ratio¶10

Detailed headnote1 paragraphs

Allahabad High Court (Saurabh Srivastava, J.) partly allowed an application under Section 528 BNSS (No. 17136 of 2026) by Vipul and another seeking quashing of the charge-sheet dated 1.12.2024 and the cognizance order dated 22.4.2025 passed by the Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad, in Case no. 3522 of 2025 (State vs. Vipul and another), arising out of Case Crime no. 774 of 2024, PS Modi Nagar, District Ghaziabad, under Sections 352, 351(3) BNS. Applying the Explanation to Section 2(1)(h) BNSS — under which a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence is deemed to be a complaint and the police officer deemed to be the complainant — the Court held that the charge-sheet had to be treated and decided as a complaint, and that the Magistrate fell in legal error by taking cognizance as a State case. The summoning/cognizance order dated 22.4.2025 was set aside, with a clarification that the order shall not preclude the court concerned from proceeding with the case as a complaint case, if required, in accordance with law. Learned counsel for the applicants relied on Shakila Bano and others v. State of U.P. and another, 2008 (61) ACC 636; the learned AGA opposed the prayer but did not dispute the submissions so made. Notice to opposite party no. 2 was dispensed with since only legal arguments were raised.

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 17136 of 2026

Vipul And Another

.....Applicant(s)

Versus
State of U.P. and Another .....Opposite Party(s)
Counsel for Applicant(s) : Satya Prakash Singh
Counsel for Opposite Party(s) : G.A.

Court No. - 77

HON'BLE SAURABH SRIVASTAVA, J.

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

The present application has been preferred for seeking quashing of charge sheet dated 1.12.2024 and cognizance order dated 22.4.2025 passed by learned Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad as well as entire proceeding of Case no. 3522 of 2025 (State vs. Vipul and another) arising out of Case Crime no. 774 of 2024 under sections 352, 351(3) BNS, PS- Modi Nagar, District Ghaziabad.

Learned counsel for applicant has made only one submission before the Court that offences under Sections 352, 351(3) 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 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.

Since only legal arguments have been raised at the behest of applicants, process to issue notice to opposite party no. 2 is hereby dispensed with.

NA528 No. 17136 of 2026

2

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

"2. Definitions.-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 352, 351(3) 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.

In view thereof, order dated 22.4.2025 passed by learned Additional Chief Judicial Magistrate, Court no. 3, Ghaziabad summoning the applicants on the basis of chargesheet submitted by concerned Investigating Officer under Sections 352, 351(3) 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.

(Saurabh Srivastava,J.)

May 5, 2026 Shaswat

Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad