NA528/16053/2026 of AJAY TIWARI @ KALLU AND ANOTHER Vs STATE OF U.P. AND ANOTHER

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 16053 of 2026 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. Heard learned counsel for the applicants and learned AGA for the State. 2. The present application has been preferred for seeking quashing of chargesheet dated 25.10.2025 and cognizance order dated 26.11.2025 along with entire proceedings of Case No.1173/IX of 2025 (State Vs. Ajay Tiwari @ Kallu and others), arising out of Case Crime No.299 of 2025, under Section 221, 352, 351(3) of BNS, P.S. Girwan, District Banda, pending in the court of learned Additional Civil Judge (J.D.)-III/ Judicial Magistrate, Banda. 3. Learned counsel for applicants has made only one submission before the Court that offences under Section 221, 352, 351(3) of BNS are non- cognizable and in view of the explanation to Section 2(1)(h) of 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 applicants has placed reliance upon the judgment passed in the case of Shakila Bano and others Vs. State of U.P. and another, 2008 (61) ACC 636. 4. Since the argument as advanced on behalf of learned counsel for applicants, is based on legal issue, no notice is required to be issued to opposite party no.2. 5. Although, learned AGA opposed the prayer sought through the instant application but did not dispute the submissions so made by learned counsel for applicants. 6. Before proceeding further, the relevant provisions of Section 2(1)(h) of BNSS are being reproduced for ready reference as under:- Versus Counsel for Applicant(s) : Anant Prakash Swarnkar, Ram Raksha Tiwari Counsel for Opposite Party(s) : G.A. Ajay Tiwari @ Kallu And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) "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." 7. In view of the above explanation, charge sheet submitted by the concerned Investigating Officer in the present case under Section 221, 352, 351(3) of BNS, should have been treated as complaint and it is to be decided as complaint but 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. 8. In view thereof, order dated 26.11.2025 passed in Case No.1173/IX of 2025 (State Vs. Ajay Tiwari @ Kallu and others), arising out of Case Crime No.299 of 2025, summoning the applicants on the basis of chargesheet submitted by concerned Investigating Officer under Section 221, 352, 351(3) of BNS treating the same as State case, is set aside. 9. Accordingly, the instant application is partly allowed. 10. 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. May 6, 2026 Vivek Kr. NA528 No. 16053 of 2026 2 (Saurabh Srivastava,J.) Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad