Neutral Citation No. - 2025:AHC:26418 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 4546 of 2025 Applicant :- Pramod Sidhu And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Girijesh Kumar Gupta,Shiv Shankar Pd Gupta Hon'ble Vikas Budhwar,J. 1. Heard Shri G.K. Gupta, learned counsel for the applicants, who are three in number and Shri Moti Lal, learned AGA appearing for the State. 2. Shri Shri Moti Lal, learned AGA submits that since a legal position is involved in the present case, thus, he does not propose to file response and with the consent of the parties, the application shall be decided at the fresh stage. 3. This application under Section 528 BNSS has been filed with prayer to quash the impugned charge-sheet dated 10-11-2023 and order taking cognizance dated 22-12-2023 in N.C.R. dated 3-2- 2023 in N.C.R. No. 0004/2023 under section 427 I.P.C, Police Station- Hafijpur, District- Hapur in Criminal Case No. 16313/2023, State vs. Pramod Sindhu and others pending before the court of learned Judicial magistrate, 2nd Hapur, District Hapur. 4. Learned counsel for the applicants submits that a N.C.R. stood lodged by the opposite party No. 2 against the applicants under Section 427 of the IPC on 03.02.2023, relatable to the commission of the offences on 03.02.2023, whereby the allegation was that the applicants herein, in particular, applicant No.1- father, applicant No.2- mother, and applicant No.3- brother of opposite party No. 2, resorted to offences under Section 427 IPC while damaging the property in question. Learned counsel for the applicants submits that a charge-sheet stood submitted under Section 427 IPC and now summoning order has been issued on 22.12.2023. Learned counsel for the applicants, while relying upon the provisions contained under Section 2(d) of the Code of Criminal Procedure submits that the present case ought to be treated as a complaint case and not a State case. He seeks to rely upon the decision in the case of Arvind Kumar Singh and 2 others vs. State of U.P. and another in the Application under Section 482 No. 26898 of 2021 decided on 31.05.2022. 5. learned AGA on the other hand submits that Section 427 of the IPC deals with offences relatable to mischief causing damage to the amount of Rs. 50/-. He submits that maximum punishment would be for a term of two years or with a fine or both. He submits that the said offences are non-cognizable offences. 6. I have heard learned counsel for the parties and perused the record, Section 2(d) of the Code of Criminal Procedure provides as under: "2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, 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 complainant, and the police officer by whom such report is made shall be deemed to be the complainant." 7. Perusal of Section 2(d) of the Cr.P.C. itself provides that complaints means an allegation made orally or in writing to a Magistrate with a view to his taking action under the Code, that some persons whether known or unknown has committed an offence but does not include a police report. Further explanation submits that a report made by the police officer in case which discloses, after investigation, commission of a non-cognizable offence shall be deemed to be complaint, and police officer by whom such report is made shall be deemed to be a complaint. Since it is not disputed that Section 427 of the IPC is non- cognizable offence thus Section 2(d) along with his explanation come into play. Once Section 2(d) is put to action then the entire procedure as contemplated under Section 200 and 202 of the Cr.P.C. have to be resorted to and the case is to be treated as a complaint case instead of State case. The said proposition of law stands mandated in the case of Arvind Kumar Singh (supra). 8. Accordingly, the application stands partly allowed, the impugned charge-sheet dated 10-11-2023 and order taking cognizance dated 22-12-2023 in N.C.R. dated 3-2-2023 in N.C.R. No. 0004/2023 under section 427 I.P.C, Police Station- Hafijpur, District- Hapur in Criminal Case No. 16313/2023, State vs. Pramod Sindhu and others pending before the court of learned Judicial magistrate, 2nd Hapur, District Hapur are hereby set aside. 9. The matter is remitted back to the Judicial Magistrate, 2nd Hapur, Hapur to proceed as per the procedure provided under Chapter XV Cr.P.C. treating the case as a complaint case and pass appropriate orders in accordance with law. Order Date :- 24.2.2025 K.K.Tiwari Digitally signed by :- KRISHNA KANT TIWARI High Court of Judicature at Allahabad