NA528/49614/2025 of MAHENDRA KUMAR AND 2 OTHERS Vs STATE OF U.P. AND ANOTHER on 15 January 2026

1. Heard learned counsel for the applicants and learned A.G.A. and perused the record.

2. This application has been filed by applicants with a prayer for quashing the cognizance/summoning order dated 27.09.2023 as well as charge sheet dated 17.09.2022 as well as entire proceeding of Case No.142273 of 2023 (State Vs. Mahendra & others), arising out of N.C.R. No.117 of 2021, under Sections 323, 504 I.P.C., Police Station- Nawabganj, District- Kanpur Nagar, pending before the Court of Metropolitan Magistrate, Room No.3, Kanpur Nagar.

3. Learned counsel for the applicants submitted that the applicants have been falsely implicated in NCR No.117 of 2021, under Sections 323 and 504 I.P.C., P.S. -Nawabganj, District- Jhansi, in which upon investigation charge-sheet has been submitted under Sections 323 and 504 I.P.C. and both the offences are bailable and non-cognizable and despite the same, the police submitted a charge sheet upon which the learned Magistrate mechanically took cognizance and issued summons vide order dated 27.09.2023, without following the mandatory procedure prescribed under law as per 1st Schedule of Cr.P.C. and accordingly, the provisions of Explanation to Section 2(d) of Cr.P.C., the charge-sheet filed before the Magistrate is to be treated as complainant and so the order of Magistrate taking cognizance dated 27.09.2023 is liable to be quashed. Versus Counsel for Applicant(s) : Awadh Bihari Pandey Counsel for Opposite Party(s) : G.A. Mahendra Kumar And 2 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s)

4. Per contra, learned A.G.A. though did not dispute the legal position provided in Section 2(d) of Cr.P.C. but contended that the application under Section 528 BNSS (akin to Section 482 Cr.P.C.) for quashing the proceedings of criminal case is malafide and misconceived and is liable to be dismissed.

5. Before proceeding further, the relevant provisions of Section 2

(d) of Cr.P.C. are being reproduced for ready reference as under:- "Section 2(d) of Code of Criminal Procedure, 1973

2. Definitions.--In this Code, unless the context otherwise requires,-- (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 complaint; and the police officer by whom such report is made shall be deemed to be the complainant."

6. Upon hearing learned counsel for the parties and perusal of record, I find that it may not be disputed that offences under Sections 323 & 504 I.P.C. are bailable and non-cognizable and so the provisions of explanation to Section 2(d) are applicable to the case. The Magistrate has taken cognizance without considering the provisions of Section 2(d) Cr.P.C. and its explanation clause. Undoubtedly in view of the provisions of Section 2(d) Cr.P.C., the Magistrate was required to adopt the procedure of a complaint case as provided. Though the present application has been filed under Section 528 of BNSS 2023, the impugned charge sheet and the cognizance order were passed prior to enforcement of the said enforcement. Therefore, the legality of the impugned order is required to be tested on the anvil of the provisions of the Code of Criminal Procedure 1973.

7. Even otherwise, Section 531 of the BNSS 2023, which corresponds to Section 465 of the Code of Criminal Procedure, saves only such errors, omissions or irregularities which do not occasion failure of justice.

8. In the present case, the Magistrate has failed to follow the mandatory procedure prescribed under the Explanation to Section 2(d) Cr.P.C. while taking cognizance upon a police report in respect of non-cognizable offences. Such failure goes to the very root of the jurisdiction and cannot be treated as a mere procedural irregularity curable under Section 531 BNSS as held by Hon'ble the Supreme Court which saves only those irregularities that do not occasion failure of justice. A similar view is taken by this court in the case of Ashish Kumar Tiwari @ Rahul And 27 Others vs. State Of U.P. Thru. A.C.S/Prin. Secy. Deptt. Home Govt. Lko. And Another 2024 Live Law (AB) 396. The relevant paragraphs are as follows:- "27. The provision in sub-section (2) of Section 155 of Cr.P.C., for asking permission of the Court to investigate a non-cognizable offence is mandatory in nature. Therefore, the investigation of a non-cognizable offence by the police without prior permission of the competent Magistrate is illegal. Even merely accepting the charge sheet by the Magistrate and taking cognizance of the offence does not validate the proceeding. Even subsequent permission by the Magistrate cannot cure the illegality. As could be seen from Section 460 of Cr.P.C., these defects of not taking permission before investigating a non-cognizable offence is also not curable. Though the charge sheet is filed after due investigation without prior permission of the Court, and the Magistrate has accepted the charge sheet and taken cognizance, it does not mean to show permission is granted by the Magistrate to investigate such non- cognizable offence. Therefore, an investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provision of this Section. 28. This Court further finds that the above said two offences are non cognizable offences. Therefore, as per Section 155(2) of Cr.P.C., the police have no right or jurisdiction to investigate the matter, without prior permission of the Magistrate, who has got jurisdiction to try those offences. Therefore, the entire charge sheet filed by the police is vitiated by serious incurable defects and procedural irregularities."

9. In view of the aforesaid discussion, this Court is of the considered opinion that the cognizance and summoning order dated 27.09.2023, passed on a police report arising out of an NCR relating to non-cognizable offences, without following the procedure of a complaint case, is illegal and unsustainable in law.

10. Accordingly, the application is allowed and the impugned order dated 27.09.2023 passed in Case No.142273 of 2023 (State Vs. Mahendra & others), arising out of N.C.R. No.117 of 2021, under Sections 323, 504 I.P.C., Police Station- Nawabganj,

District- Kanpur Nagar is hereby quashed.

11. The matter is remitted to the court concerned to proceed afresh in accordance with law, treating the police report as a compliant in terms of the Explanation to Section 2(d) Cr.P.C.

12. Let a copy of this order be sent to court below for proceeding with the case in accordance with law. January 16, 2026 Anand Sri./-

(Rajeev Bharti,J.) Digitally signed by :- ANAND KUMAR SRIVASTAVA High Court of Judicature at Allahabad