HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 27765 of 2025 Court No. - 82 HON'BLE PADAM NARAIN MISHRA, J. 1. List revised. Learned counsel for the opposite party no. 2 is not present. 2. Heard Sri Syed Mohammed Jafer Husain, learned counsel for the applicants, learned AGA for the State and perused the record. 3. The present 528 BNSS application file by the applicants seeking quashing of the impugned order dated 03.02.2025 passed by ACJM IInd, Varanasi in Case No. 4453 of 2025 arising out of Case Crime No. 97 of 2024 under sections 115, 352 and 351(2) BNS, Police Station Dashashwamedh, District Varanasi pending in the ACJM IInd, Varanasi. 4. Brief fact of the present case is that NCR was lodged as N.C.R. No.27 of 2024 on 13.9.2024 offence u/s. 115, 352, 351(2) of BNS. Subsequently, the opposite party No.2 by moving an application u/s.174(2) BNSS got an order of investigation. The NCR was converted in Case Crime No. 4453 of 2025 on 26.11.2024. Thereafter, the investigating officer submitted a charge sheet u/s.115,352,351(2) BNS and the magistrate has took cognizance under the aforesaid sections. 5. Learned counsel for the applicants submitted that lodging of F.I.R., filing of charge sheet and taking cognizance in the offences which are non- cognizable offence in nature, are wholly illegal and unjustified in the eyes of law. He further submitted that neither the police could investigate into the offences nor submit a report on which question of taking cognizance could have arisen because sections 115,352,351(2) BNS is non-cognizable offence therefore, the entire proceedings initiated against the applicants is liable to be quashed by this Hon'ble Court. Versus Counsel for Applicant(s) : Syed Mohammed Jafer Husain Counsel for Opposite Party(s) : G.A., Mohd. Afzal Ravi Kumar Gupta And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 6. Learned A.G.A. could not dispute the aforesaid facts. 7. Considering the rival submission advanced by the learned counsel for the parties and perusing the material available on record, It is undisputed that NCR was registered for the offence under Sections 115, 351(2) and 352 of BNS and after investigation charge-sheet has been submitted under Sections 115, 351(2) and 352 of BNS, which is a non-cognizable offence, hence the explanation of Section 2(h) BNSS will apply in the present matter which is as follows:- "(h) "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 complaint; and the police officer by whom such report is made shall be deemed to be the complainant;" 8. In the present case on the perusal of material available on records, it is evident 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 court, which is not sustainable in the eyes of the law. So, there is substance in the argument of the learned counsel for the applicants, the order of cognizance/summoning dated 03.02.2025 is vitiated in the eye of law and liable to be set aside. 9. Summoning order dated 03.02.2025 passed by ACJM IInd, Varanasi in Case Crime No. 4453 of 2025 arising out of Case Crime No. 97 of 2024 under sections 115, 352 and 351(2) BNS, Police Station Dashashwamedh, District Varanasi is hereby set aside. 10. The court concerned is directed to pass a fresh order in the light of the observations made herein above. January 21, 2026 v.k. updh. NA528 No. 27765 of 2025 2 (Padam Narain Mishra,J.) Digitally signed by :- VINOD KUMAR UPADHYAY High Court of Judicature at Allahabad