On Wednesday, in a detailed examination of the procedural safeguards embedded in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Allahabad High Court held that a police report filed for a non-cognizable offence cannot be treated as a police case. Stressing the statutory mandate that protects the accused’s right to be heard, the Court declared that a Magistrate must treat such a report as a complaint and proceed accordingly. The Bench observed that the summoning order under challenge was issued “in derogation of the provisions of BNSS” and amounted to a violation of Article 21.
Brief facts:
The case arose out of a neighbourhood dispute concerning the drainage of toilet waste. The complainant alleged that the accused had improperly constructed a soak-pit toilet, causing dirty water to flow into an open drain, leading to an altercation involving alleged abuse and assault. A Non-Cognizable Report was registered under Section 115(2) and Section 352 of the Bharatiya Nyaya Sanhita, and upon investigation authorised by the Magistrate, the police submitted a charge-sheet for a non-cognizable offence. The Judicial Magistrate took cognisance under Section 210(1)(b) of the BNSS and summoned the accused to face a summons case instituted on a police report. Aggrieved, the accused approached the High Court.
Contentions:
The Petitioner argued that the N.C.R. lodged by the opposite party is entirely false and was filed with the sole intent to harass them. They maintained that no incident of abuse or assault ever occurred and that the allegations regarding toilet wastewater were fabricated. Emphasising their clean record and innocence, they submitted that no offence is made out. Most importantly, they contended that the cognizance-cum-summoning order is illegal, as the Magistrate failed to apply the Explanation to Section 2(1)(h) of the BNSS, did not treat the police report as a “complaint”, and wrongly proceeded under Section 210(1)(b) instead of Section 210(1)(a) of the BNSS, amounting to a misuse of judicial process.
On the other hand, A.G.A. Prateek Tyagi, representing the State, submitted that the factual disputes raised by the petitioners cannot be examined at this stage. He maintained that the Magistrate’s cognizance-cum-summoning order is lawful and free from error, and therefore, the application is liable to be rejected.
Observation of the Court:
The Court examined the procedural validity of cognizance taken in a non-cognizable offence under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), emphasizing the mandatory deeming provision under the Explanation to Section 2(1)(h) of the BNSS, which states that "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 highlighted that this provision requires the Magistrate to treat the police report as a complaint and take cognizance under Section 210(1)(a) of the BNSS for trials instituted on a complaint, rather than under Section 210(1)(b) of the BNSS as if instituted on a police report. It noted distinctions in trial procedures for summons cases, such as the applicability of Section 279 and Section 280 of the BNSS only to cases instituted on complaint, while Section 281 of the BNSS applies to those on police report, allowing stoppage of proceedings with discharge or acquittal effects. The Court interpreted these provisions to emphasise that discharge under Section 281 BNSS is preliminary and does not trigger double jeopardy under Article 20(2) of the Constitution or Section 337 of the BNSS, unlike acquittal.
Addressing constitutional issues, the Court invoked Article 21 of the Constitution, observing that prolonged trials violate the right to life and liberty, citing the principle "lex dilationes abhorret" and Supreme Court precedents like Sirajul v. State of Uttar Pradesh, where it was held that "long delays in trials defeat the very purpose of justice. If cases remain pending for years without valid reason, it affects the fundamental rights of the accused enshrined in Article 21 of the Constitution of India and weakens public trust in the justice system. Therefore, it is the duty of the courts to ensure that cases are decided within a reasonable time so that justice remains meaningful and effective."
The Court further clarified that in non-cognizable cases, investigation requires a Magistrate's order under Section 174(2) of the BNSS, and without it, the police report is invalid as a charge-sheet. Relying on precedents such as Keshav Lal Thakur v. State of Bihar and Anurag Yadav and Ors. v. State of U.P. and Ors., the Court found the Magistrate's failure to convert the report into a complaint and provide a hearing under the first proviso to Section 223(1) of the BNSS erroneous, amounting to procedural illegality. It directed Magistrates to exercise caution in summoning, noting that it constitutes "merely the taking of judicial notice of the material placed before the Court in the form of a chargesheet or complaint, and does not amount to any determination of guilt or innocence."
The decision of the Court:
In light of the foregoing discussion, the impugned cognizance-cum-summoning order passed by the Judicial Magistrate is quashed and set aside. The matter is remanded to the Magistrate, who shall issue a fresh order in strict conformity with the Explanation to Section 2(1)(h) of the Bharatiya Nagarik Surksha Sanhita, 2023 (BNSS). The Magistrate is directed to treat the charge-sheet, insofar as it discloses a non-cognizable offence, as a “complaint” and to proceed thereafter strictly in accordance with law and the observations recorded by this Court.
Case Title: Prempal and 3 Others Vs. State of U.P. and Another
Case No: Application U/S 528 BNSS No. - 1624 Of 2025
Coram: Hon’ble Justice Praveen Kumar Giri
Advocate for Appellant: Advs. Shaheen Bano, Shahnawaz Khan
Advocate for Respondent: G.A
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