NA528/39204/2026 of ROSHANI CHAURASIA Vs STATE OF U.P. AND ANOTHER on 7 October 2026

1. Heard learned counsel for the applicant and learned AGA for the State.

2. The present application has been preferred for seeking quashing of charge sheet dated 4.7.2025 and cognizance order dated 25.9.2025 passed by learned Additional Chief Judicial Magistrate, Court no. 2, Varanasi as well as entire proceeding of Case Crime no. 73 of 2025 under sections 352, 115(2) BNS, PS- Kotwali, District Varanasi.

3. Learned counsel for applicant has made only one submission before the Court that offences under Sections 352, 115(2) BNS are non-cognizable and in view of the explanation to Section 2(1)(h) BNSS, the charge sheet filed by the Investigating Officer concerned cannot proceed as a police case and the same is liable to be proceeded with as a complaint case. In support of his submission, learned counsel of applicant has placed reliance upon the judgments passed in the case of Shakila Bano and others Vs. State of U.P. and another, 2008 (61) ACC 636.

4. Although, learned AGA opposed the prayer sought through the instant application but did not dispute the submissions so made by learned counsel for applicant.

5. Since only legal arguments have been raised at the behest of applicants, process to issue notice to opposite party no. 2 is hereby dispensed with.

6. Before proceeding further, the relevant provisions of Section 2(1)(h) Versus Counsel for Applicant(s) : Vinay Kumar Pandey Counsel for Opposite Party(s) : G.A. Roshani Chaurasia .....Applicant(s) State of U.P. and Another .....Opposite Party(s)

BNSS are being reproduced for ready reference as under:- "2. Definitions.-In this Sanhita, unless the context otherwise requires,- (h) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Sanhita, 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."

7. In view of the above explanation, charge sheet submitted by the concerned Investigating Officer in the present case under Sections 352, 115(2) BNS shall be treated as complaint and it is to be decided as complaint and the learned Magistrate fell in legal error by taking cognizance as State case and the orders passed by him is, therefore, liable to be set aside.

8. In view thereof, order dated 25.9.2025 passed by learned Additional Chief Judicial Magistrate, Court no. 2, Varanasi summoning the applicant on the basis of chargesheet submitted by concerned Investigating Officer under Sections 352, 115(2) BNS treating the same as State case, is set aside.

9. Accordingly, the instant application is partly allowed.

10. However, it is made clear that this order shall not preclude the learned court concerned to proceed with the case treating it as complaint case, if required, in accordance with law. October 8, 2026 Shaswat NA528 No. 39204 of 2026 2 (Saurabh Srivastava,J.) Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad