Neutral Citation No. - 2025:AHC:111392 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 8777 of 2025 Applicant :- Babloo Alias Aurangjeb Khan And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Chowdhury Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicants, learned A.G.A for the State and perused the record. 2. This application under Section 528 B.N.S.S. has been preferred against the order dated 15.01.2025, passed by the learned Chief Judicial Magistrate, Varanasi in Criminal Case No. 2528 of 2021 (State Vs. Babloo alias Aurangjeb Khan & Others), arising out of Case Crime No. 609 of 2020, under Sections 323, 504 I.P.C., Police Station Sigra, District Varanasi and to direct the Chief Judicial Magistrate, Varanasi to pass proper and fresh order in pursuance of order dated 27.11.2024. 3. It is submitted by learned counsel for the applicants that in the instant case charge sheet was submitted for offence under sections 323, 504 I.P.C., which are non-cognizable offence but the cognizance was taken as a State case vide order dated 25.01.2021. The applicants have filed application under Section 482 Cr.P.C. No. (34218 of 2024) against summoning order dated 25.01.2021, which was disposed of by this Court vide order dated 27.11.2024 and the summoning order dated 25.01.2021 was quashed and matter was remanded back to the learned Magistrate to pass a fresh order in accordance with law. It is further submitted that in pursuance to order of this Court, learned Magistrate has passed impugned order dated 15.01.2025 and held that provisions of Section 2(d) Cr.P.C. are not applicable in the instant matter. Learned counsel for the applicants submitted that the observations of learned Magistrate are not only against law but in fact the observations of learned Magistrate are a deliberate attempt to violate the order dated 27.11.2024 passed by this Court. 4. Learned A.G.A. is also agreed that offences are non-cognizable hence the charge-sheet for offence under 323, 504 IPC has to be considered as a complaint case in terms of Section 2(d) Cr.P.C. and cognizance has to be taken accordingly. 5. I have considered the rival submissions and perused the record. 6. It is apparent from the record that after investigation, the charge sheet against the applicants was submitted for offence under Sections 323, 504 I.P.C., which are non-cognizable offence and thus, the charge-sheet for offence under 323, 504 IPC has to be considered as a complaint case in terms of section 2(d) (explanation) of Cr.P.C. and cognizance has to be taken as a complaint in terms of section 190(1)(a) CrPC. However, the learned Magistrate has taken cognizance as a State case vide order dated 25.01.2021. The said order was set aside by this Court vide order dated 27.11.2024, passed in Application under Section 482 Cr.P.C. No. 34218 of 2024, by observing that in terms of Section 2(d) Cr.P.C. the said charge sheet has to be treated as a complaint and cognizance has to be taken accordingly. It appears that despite that direction of this Court, learned Magistrate has again passed order dated 15.01.2025 by holding that provisions of Section 2(d) Cr.P.C. are not applicable to the matter. Apparently, this observation of learned Magistrate is against law and the same also violates direction of this Court. Learned Magistrate was bound to follow the direction and observations made by this Court while remanding the case back. Though in his comments, learned Chief Judicial Magistrate has stated that cognizance has been taken as Complaint case but the same is not reflected from impugned order. Perusal of impugned order clearly shows that learned Chief Judicial Magistrate has observed that provisions of section 2 (d) CrPC are not attracted. Be that as it may, in view of explanation sent by learned Chief Judicial Magistrate, Varanasi, no adverse remark is being made against him. It is clear that impugned order is against law and also against the spirit and observations of this court, hence liable to be set aside. 7. In view of the aforesaid, the impugned order dated 15.01.2025 passed by learned Chief Judicial Magistrate, Varanasi in Criminal Case No. 2528 of 2021 (State Vs. Babloo alias Aurangjeb Khan & Others) is hereby set aside and the matter is remanded back to the learned C.J.M., Varanasi to pass an order on the point of summoning afresh, in accordance with law. 8. The application under Section 528 B.N.S.S. is disposed of. Order Date :- 11.7.2025 SK Srivastava Digitally signed by :- SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad