Neutral Citation No. - 2025:AHC:52906 Court No. - 72 Case :- APPLICATION U/S 528 BNSS No. - 11782 of 2025 Applicant :- Vivek Shukla And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shivam Kumar Modanwal Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J. 1. Heard Surendra Kumar Mishra, Advocate holding brief of Sri Shivam Kumar Modanwal, learned counsel for the applicants and Sri B.N. Upadhyay, learned A.G.A. for the State. 2. The present application under Section 528 of B.N.S.S. has been filed to quash the entire proceedings of Case No. 24375 of 2024 (State Vs. Vivek Shukla and another), arising out of Case Crime No. 21 of 2024, under Section 323 of I.P.C., Police Station Harpur Budhat, District Gorakhpur, as well as cognizance/summoning order dated 22.5.2024, pending in the court of Judicial Magistrate -Ist, Gorakhpur. 3. Learned counsel for the applicants submits that initially N.C.R. dated 13.8.2022 has been lodged which has been subsequently converted to F.I.R. dated 27.1.2024. It is further submitted the offence punishable under Sections 323 of I.P.C. is non-cognizable offence as per provision of Section 2(d) of Cr.P.C. the case could not be a State case and it has been proceeded as a State case, the cognizance/ summoning order is an abuse of the process of law. 4. Section 2(d) of Cr.P.C. is reproduced herein below: "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;" 5. A bare perusal of explanation added to Section 2(d) shows that this explanation speaks about cases where police has investigated a cognizable case but investigation made discloses a non-cognizable offence. 6. In view of what has been stated above, the present application is disposed of. The order impugned dated 22.5.2024 passed by Judicial Magistrate, Ist, Gorakhpur, is, hereby, quashed. The matter is remanded back to the Court concerned and the Magistrate is directed to pass a fresh order after applying the judicial mind. Order Date :- 10.4.2025 A.P. Pandey Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad