The Allahabad High Court has ruled that a police report (charge-sheet) filed in connection with a non-cognizable offence must be deemed a “complaint” under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The Court held that a Magistrate errs in taking cognizance of such matters as a “State case” under Section 210(1)(b) of the BNSS, rather than as a “complaint case” under Section 210(1)(a).
Delivering the judgment in the case of Prempal And 3 Others vs. State of U.P. and Another (Application U/S 528 BNSS No. 1624 of 2025), Justice Praveen Kumar Giri quashed the cognizance-cum-summoning order passed by the Judicial Magistrate, Tilhar, District Shahjahanpur, and remanded the matter for a fresh order in accordance with the law.
The legal issue before the Court was whether a Magistrate can take cognizance of a non-cognizable offence on a police report by treating it as a State case, or whether it must be treated as a complaint. The High Court clarified that under the Explanation to Section 2(1)(h) of the BNSS, such a report is deemed a complaint. Consequently, the Court set aside the impugned order dated October 11, 2024 (incorrectly noted as December 11, 2024, in parts of the application), where the Magistrate had summoned the petitioners under Sections 115(2) and 352 of the Bharatiya Nyaya Sanhita (BNS) without following the procedure for complaint cases.
Background of the Case
The dispute arose from a neighbourhood conflict involving the drainage of toilet waste. The complainant, Ramnath (Opposite Party No. 2), alleged that the petitioners, Prempal and his family members, had constructed a toilet drainage system that caused dirty water to flow in front of his house.
On August 10, 2024, an altercation allegedly occurred where Ramnath claimed he was abused and beaten by the petitioners. A Non-Cognizable Report (NCR) No. 178 of 2024 was registered under Sections 115(2) (Voluntarily causing hurt) and 352 (Intentional insult with intent to provoke breach of peace) of the BNS.
Following an investigation ordered by the Magistrate under Section 174(2) BNSS, the police submitted a charge-sheet on October 5, 2024. The Judicial Magistrate took cognizance of the offences on the police report and summoned the accused petitioners.
Arguments of the Parties
The counsel for the petitioners, Shaheen Bano and Shahnawaz Khan, argued that the allegations were false and fabricated to harass the applicants. The primary legal argument raised was that the offences under Sections 115(2) and 352 BNS are non-cognizable and punishable with imprisonment of up to two years (or less).
The counsel contended that the Magistrate committed a procedural error by taking cognizance under Section 210(1)(b) BNSS (cognizance upon a police report), ignoring the Explanation to Section 2(1)(h) BNSS, which mandates treating such reports as complaints. It was argued that the procedure for a complaint case should have been followed, including the provisions regarding the examination of the complainant.
Sri Prateek Tyagi, learned A.G.A. for the State, submitted that the factual aspects could not be examined at this stage and defended the impugned order.
Court’s Analysis
The Court meticulously examined the provisions of the BNSS, specifically the definitions of “complaint” and “police report,” and the procedure for taking cognizance.
Justice Giri observed that under the Explanation to Section 2(1)(h) of the BNSS, “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.”
The Court noted that the offences in question were non-cognizable and bailable. Therefore, the Magistrate was required to treat the charge-sheet as a complaint and take cognizance under Section 210(1)(a) BNSS.
The Court highlighted several procedural mandates that the Magistrate failed to observe:
- Cognizance Source: The Magistrate took cognizance treating it as a police case under Section 210(1)(b) instead of a complaint case under Section 210(1)(a).
- Hearing Opportunity: The Court pointed out that under the First Proviso to Section 223(1) of the BNSS, effective from July 1, 2024, “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
- Distinction in Trial Procedure: The judgment elaborated on the significant differences between trials instituted on a complaint versus a police report. Specifically, Section 279 BNSS allows for the acquittal of the accused upon the non-appearance or death of the complainant in a complaint case—a remedy not available in cases instituted on a police report (Section 281 BNSS).
The Court cited previous rulings, including Keshav Lal Thakur vs. State of Bihar (1996) and Anurag Yadav and others vs. State of U.P. (2020), which established that cognizance on a charge-sheet in a non-cognizable offence as a State case is illegal.
Furthermore, the Court took serious note of the Magistrate’s failure to mention his name, designation, and judicial ID on the order, violating the High Court’s circulars dated 23.08.2018 and 19.07.2023.
Decision
The High Court held that the impugned order was passed “in derogation of the provisions of Bharatiya Nagarik Suraksha Sanhita, 2023.”
Justice Praveen Kumar Giri passed the following directions:
- Quashing: The cognizance-cum-summoning order dated 11.10.2024 (cited as 11.12.2024 in the prayer) was quashed and set aside.
- Remand: The matter was remanded to the Judicial Magistrate to pass a fresh order.
- Specific Direction: “The Magistrate shall treat the police report (charge-sheet), insofar as it discloses the commission of a non-cognizable offence, as a ‘complaint,’ and shall thereafter proceed strictly in accordance with law.”
- Caution to Magistrate: The Magistrate was directed to exercise greater caution in the future and strictly comply with the requirement to validly sign orders with name, designation, and judicial ID.
The Court concluded by emphasizing that the act of summoning is merely taking judicial notice and does not determine guilt or innocence. The application was disposed of with these observations.
