The Allahabad High Court has clarified a critical procedural distinction under the Bharatiya Nagarik Suraksha Sanhita, 2023, holding that charge sheets filed for non-cognizable offences cannot be treated as police cases. This ruling reinforces the statutory mandate that such cases must proceed as complaint cases, with the police officer acting as the complainant. The decision provides immediate guidance to trial courts and investigating agencies on the correct procedural path for minor offences under the new criminal code.
Background & Facts
The Dispute
The applicant, Harsh Pachauri alias Chhotu, faces criminal proceedings arising from Case Crime No. 108 of 2025, registered at P.S. Kotwali Hathras, District Hathras. The case was registered under Sections 115(2), 351(2), and 351(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNS), which pertain to non-cognizable offences involving assault or criminal force without intent to commit grievous hurt.
Key Facts
- The alleged incident occurred prior to the filing of Crime No. 108 of 2025 on an unspecified date in early 2025
- The Investigating Officer completed the investigation and filed a charge-sheet on 05.05.2025
- The Chief Judicial Magistrate, Hathras, took cognizance of the charge-sheet on 14.10.2025 and issued summons to the applicant
- The charge-sheet was treated as a State case, not a complaint case
- The applicant was not served with any prior notice or complaint from a private party
Procedural History
- Early 2025: Alleged incident leading to registration of Crime No. 108 of 2025
- 05.05.2025: Charge-sheet filed by Investigating Officer under Sections 115(2), 351(2), 351(3) BNS
- 14.10.2025: Chief Judicial Magistrate, Hathras, took cognizance and issued summons treating the matter as a State case
- 29.03.2026: Application under Section 528 BNSS filed before the Allahabad High Court seeking quashing of charge-sheet and cognizance order
- 29.04.2026: Hearing before Justice Saurabh Srivastava
The Parties' Positions
The applicant contended that the offences under Sections 115(2), 351(2), and 351(3) BNS are non-cognizable, and therefore, the charge-sheet filed by the police cannot be treated as a police case. He relied on the explanation to Section 2(1)(h) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates that such reports be deemed complaints.
The State, through the Additional Government Advocate, did not dispute the legal submission made by the applicant’s counsel.
Relief Sought
The applicant sought quashing of:
- The charge-sheet dated 05.05.2025
- The cognizance and summoning order dated 14.10.2025
- All proceedings in Case No. 1458 of 2025
Key Statutory Provisions
- Section 115(2) BNS: Assault or use of criminal force without intent to cause grievous hurt - non-cognizable
- Section 351(2) BNS: Criminal force without intent to cause grievous hurt - non-cognizable
- Section 351(3) BNS: Use of criminal force in a manner likely to cause fear of injury - non-cognizable
- Section 2(1)(h) BNSS: Definition of "complaint" with Explanation
The Legal Issue
The central question was whether a charge-sheet filed by a police officer in respect of a non-cognizable offence under the BNS must be treated as a police case or, under the explanation to Section 2(1)(h) BNSS, must be deemed a complaint and proceeded with accordingly.
Arguments Presented
For the Applicant
Learned counsel for the applicant submitted that Sections 115(2), 351(2), and 351(3) BNS are explicitly classified as non-cognizable offences under the First Schedule of the BNS. He argued that under the plain language of the explanation to Section 2(1)(h) BNSS, any report by a police officer disclosing the commission of a non-cognizable offence after investigation must be deemed a complaint, and the officer must be deemed the complainant. He relied on Shakila Bano and others v. State of U.P., 2008 (61) ACC 636, which held a similar principle under the old CrPC, and contended that the new BNSS codifies and strengthens this position.
For the Respondent
The Additional Government Advocate did not contest the legal submission. No counter-arguments were advanced by the State.
The Court's Analysis
The Court examined the statutory framework under Section 2(1)(h) BNSS, which defines "complaint" and includes a critical 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."
The Court noted that the explanation is unambiguous and leaves no room for interpretation. The legislature has expressly mandated that police reports in non-cognizable cases are not police cases but complaints. The Court emphasized that the distinction is not merely procedural but jurisdictional - a Magistrate cannot take cognizance of a non-cognizable offence on the basis of a police report unless it is treated as a complaint.
"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."
The Court held that the learned Chief Judicial Magistrate erred in treating the charge-sheet as a State case. The cognizance order dated 14.10.2025 was therefore legally unsustainable. The Court further clarified that while the cognizance and summoning order must be set aside, the matter is not extinguished - the Magistrate retains jurisdiction to proceed if a formal complaint is filed or if the police officer, acting as the deemed complainant, initiates proceedings under the correct procedure.
The Verdict
The application was partly allowed. The cognizance and summoning order dated 14.10.2025, along with the charge-sheet dated 05.05.2025, were set aside. The proceedings in Case No. 1458 of 2025 were quashed to the extent they were initiated as a State case. The Court clarified that the matter may be revived by the learned Magistrate if the case is re-initiated as a complaint case, with the Investigating Officer deemed the complainant under Section 2(1)(h) BNSS.
What This Means For Similar Cases
Police Reports for Non-Cognizable Offences Are Not Prosecution Files
- Practitioners must immediately challenge any cognizance taken on a charge-sheet for non-cognizable offences under BNS
- The police cannot initiate prosecution in non-cognizable cases without filing a formal complaint
- Trial courts must screen the nature of the offence before accepting a charge-sheet as a State case
The Officer Becomes the Complainant - A New Procedural Reality
- Investigating officers must now file a formal complaint before the Magistrate, even if they conducted the investigation
- The complaint must be signed by the officer and must contain the same allegations as the charge-sheet
- Failure to re-file as a complaint renders all subsequent proceedings void
Procedural Errors Cannot Be Curried by Subsequent Action
- A cognizance order based on an incorrect classification cannot be validated by later proceedings
- The defect is jurisdictional and goes to the root of the court’s authority
- Any conviction or order passed in such a case is liable to be set aside on appeal or revision
