Neutral Citation No. - 2025:AHC:33346 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 5515 of 2025 Applicant :- Sudhir Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Mishra,Devvrat Misra Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Ashutosh Mishra along with Sri Devvrat Misra, learned counsel for the applicant as well as Sri Vikas Sharma, State Law Officer. 2. Learned State Law Officer has made a statement at bar that since legal questions are involved in the present application, thus, he does not propose to file any response and the application be decided on the basis of the documents available on record. 3. Learned counsel for the applicant has submitted that a first information report stood lodged against the applicant by the opposite party No. 2 who happens to be the mother of the applicant being FIR No. 0530 on 13.08.2024 under Sections 406, 352, 323 IPC relatable to the commission of offence that on 18.12.2022 at 2:30 hours when the opposite party was all alone in the house then the applicant extended injuries through hard and blunt object which are three in number just in order to claim his share over the property for which he is not entitled particularly when he is not taking care of the old aged mother. Learned counsel for the applicant further submits that there happens to be a civil suit pending before the Court of Civil Judge (S.D.), Ghaziabad No. 422 of 2024 against the opposite party No. 2 and others instituted on 20.04.2024 in which an injunction order has been granted on 20.05.2024, however, just in order to wriggle out from the same, the impugned FIR has been lodged on 13.08.2024 that too of an incident of 18.12.2022 after one year eight months. It is also submitted that the charge sheet/summoning order has been issued under Section 323 and 352 IPC. 4. Learned counsel for the applicant further submits that the offences under Sections 352 and 323 IPC are non cognizable offences, thus, the provisions of Section 190(1)(a) of the Cr.P.C. will come into play and, thus, the procedure as envisaged for the complaint case is to be followed and not the State case. He seeks to rely upon the decision of this Court in Rama Shankar Upadhayay and three others vs. State of U.P. and another: Application U/s 33219 of 2022 decided on 14.11.2022. 5. Learned AGA, on the other hand, does not dispute the said factum that offences under Sections 323 and 352 are non cognizable, thus, they are covered under the provisions of Section 2(d) of the Code of Criminal Procedure and the case is to be treated as a complaint case rather than a State case. 6. Having heard the submissions made across the bar, it is apparent that the first information report stood lodged against the applicant by the opposite party No. 2 under Sections 406, 352, 323 IPC and the charge sheet submitted against the applicant under Section 323 and 352. Summons have been issued against the applicant under Section 323, 352 which are not cognizable. Section 2(d) of the Cr.P.C. defines a complaint which means an allegation made orally or in writing to a Magistrate, with a view to taking action under the Code, that some person, whether known or unknown, had committed an offence, but does not include a police report. Explanation to Section 2(d) of Cr.P.C. itself defines that a report made by the Police Officer in a case which discloses, after investigation, the commission of non-cognizable offences shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complaint. In the present case, once a charge sheet has been submitted under Sections 323, 352 which are non cognizable, thus, the procedure as envisaged under Section 190(1)(a) is to be proceeded with. A Coordinate Bench of this Court in Rama Shankar Upadhayay (supra) has also taken the same view that in the cases of submission of charge sheet under non cognizable offences then the case is to be proceeded as complaint case and not State case. Therefore, in view of the settled position of law, the order of taking cognizance is set aside, the trial court shall proceed with the case as complaint case under Chapter XV of the Code of Criminal procedure. 7. In view of the above, the application stands disposed of. 8. A copy of the order dated 20.05.2024 in Original Suit No. 422 of 2024 is taken on record and marked as Appendix 'A'. Order Date :- 7.3.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad