NA528/16174/2026 of FAIJAN AND 2 OTHERS Vs STATE OF U.P. AND ANOTHER

HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 16174 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 charge-sheet dated 03.07.2025 along with cognizance/summoning order dated 23.09.2025 passed by learned ACJM, Court No.6, Ghaziabad as well as entire proceedings of Criminal Case No.6862 of 2025  (State vs. Faijan and Others) arising out of Case Crime No.255 of 2025, under Sections 115(2), 352, 351(2) BNS, P.S. Ghaziabad Kotwali, District- Ghaziabad. 3. Learned counsel for applicants has made only one submission before the Court that offences under Sections 115(2), 352, 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 applicants 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. 4. Although, learned AGA opposed the prayer sought through the instant application but did not dispute the submissions so made by learned counsel for applicants. 5. Before proceeding further, the relevant provisions of Section 2(1)h BNSS are being reproduced for ready reference as under:- "2. Definitions.- (1) In this Sanhita, unless the context otherwise requires,- Versus Counsel for Applicant(s) : Ashish Kumar Pandey, Nandini Mishra Counsel for Opposite Party(s) : G.A. Faijan And 2 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) (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." 6. In view of the above explanation, charge sheet submitted by the concerned Investigating Officer in the present case under Sections 115(2), 352, 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. 7. Since the legal issue has been raised by learned counsel for the applicants and as such process to issue notice to opposite party no.2 is hereby dispensed with.  8. In view thereof, cognizance/summoning order dated 23.09.2025 passed by learned ACJM, Court No.6, Ghaziabad against the applicants on the basis of charge-sheet submitted by concerned Investigating Officer under Sections 115(2), 352, 351(2) 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 Saif NA528 No. 16174 of 2026 2 (Saurabh Srivastava,J.) Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad