Neutral Citation No. - 2025:AHC:78345 Court No. - 52 Case :- APPLICATION U/S 528 BNSS No. - 6193 of 2025 Applicant :- Jeetaloo Alias Jitalu And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashwani Kumar Pathak Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J. Heard Mr. Ashwani Kumar Pathak, learned counsel for the applicants and Mr. P.K. Singh, learned Brief Holder for the State and perused the record. The present application under Section 528 BNSS has been filed for quashing the charge sheet dated 08.10.2024 and cognizance order dated 21.10.2024 as well as the entire proceeding of Criminal Case No. 577 of 2024, NCR No. 212/ 2021, under Sections 323, 427 IPC, Police Station-Jhangha, District-Gorakhpur, pending before the court of Judicial Officer, Gram Court Chauri, District Gorakhpur. It is contended by learned counsel for the applicants that charged Sections are bailable Sections and the learned Magistrate may pass an order taking cognizance if he so desires by proceeding under Chapter XV of the Code of Criminal Procedure. It is further contended that the order impugned has been challenged and reliance has been placed to Explanation 2(d) of the Code of Criminal Procedure. It is next contended that no permission was taken under Section 155(2) Cr.P.C. and charge sheet has been submitted in non-cognizable offence. Learned counsel for the applicants has relied upon a judgement of Apex Court in the case of M/s Eicher Tractor Ltd. and others Vs. Harihar Singh and another reported in 2009 (64) ACC 296 as well as another reported judgement of this Court in the case of (Awadesh Kumar and others Vs. State of U.P. and others), 2008 (1) JIC 220 (All) in support of his contention. The order taking cognizance has been passed and it is argued that charge sheet has been submitted under the charged Sections, which are non-cognizable offence. Reliance has been placed on Explanation to Section 2(d) of Code of Criminal Procedure, which reads as follows: "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 complaint." Learned A.G.A., vehemently, opposed the submissions made by learned counsel for the applicants. The aforesaid Explanation has been interpreted in a Single Judge decision of this Court in the case of Dr. Rakesh Kumar Sharma Vs. State of U.P. and another reported in 2007 (9) ADJ 478 and Raheesuddin @ Kalwa and others vs State of U.P. and another, dated 7.10.2010 passed in Application U/s 482 Cr.P.C. No. 32258 of 2010. It is clear from above that all the offences punishable under Sections 323 and 427 I.P.C. are non-cognizable. In view of the said explanation, report of the police officer, after investigation disclosing commission of non-cognizable offence is to be deemed to be a complaint and the police officer, who submitted the report has to be deemed to be a complainant. In other words the charge-sheet submitted by the police in a non- cognizable offence shall be treated to be a complaint and the procedure prescribed for hearing of complaint case shall be applicable to that case. In the present case from the material brought on record it transpires that the charge-sheet submitted by the Investigating Officer instead of being treated as a complaint, has been treated as a State Case by the concerned Magistrate, which is not permissible under law. After having considered the submissions made by learned counsel for the parties and perused the material on record and examined the relevant provisions of the Code of Criminal Procedure, I am of the view that the submissions made by learned counsel for the applicant have force and are liable to be accepted. For the aforesaid reasons, the present case be treated to be a complaint case and the procedure prescribed for hearing of the complaint shall be followed by the court concerned before summoning the applicants. In view of the above, the order dated 21.10.2024 by which the concerned Magistrate has taken cognizance is quashed. With the aforesaid directions/observations, this application stands partly allowed. Order Date :- 12.5.2025 DS Digitally signed by :- DIGAMBER SINGH High Court of Judicature at Allahabad