[Cites 7, Cited by 0]
Allahabad High Court
Shyam Nath Pandey vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 15 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:25983
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 482 No. - 2376 of 2026
Shyam Nath Pandey
.....Applicant(s)
Versus
State Of U.P. Thru. Prin. Secy. Home Lko. And 7 Others
.....Opposite Party(s)
Counsel for Applicant(s)
:
Vishnu Kumar Srivastava, Kaushlendra Kumar
Counsel for Opposite Party(s)
:
G.A.
Court No. - 15
HON'BLE BRIJ RAJ SINGH, J.
1. Shri B.M. Tripathi, Shri Chandra Kant Rai and Ms. Aparna Pandey, Advocates have filed power on behalf of opposite party nos. 5 and 6.
2. Shri Chandra Kant Rai, Shri Rahul Tripathi and Ms. Aparna Pandey, Advocates have filed power on behalf of opposite party nos. 2, 7 and 8.
3. As per Office Report, service report is awaited. However, power has been filed on behalf of opposite party nos.2, 5, 6, 7 and 8. With the consent of the parties, this Court proceeds to hear and decide the application on merits.
4. Instant application under Section 482 of Code of Criminal Procedure, 1973 (in short "CrPC") has been filed challenging the order dated 17.01.2026 passed by Chief Judicial Magistrate, Lucknow (in short "Magistrate) in Complaint Case No. 10132 of 2024 (Shyam Nath Pandey Vs. Devendra Singh and Ors.). Vide impugned summoning order dated 17.01.2026, the application filed by the complainant/applicant to proceed in the case as per provisions of CrPC has been rejected.
5. It is the case of the applicant that the complaint was filed on 07.02.2024 bearing case no.12270 of 2024 under Section 190 CrPC before the Magistrate. The case was listed first time on 12.02.2024 and thereafter on 18.12.2024, the case was listed for admission and on the said date, after hearing the counsel for the applicant/complainant, the Magistrate directed to register the miscellaneous case as complaint case. It was listed for 23.01.2025 for hearing the case at the pre-cognizance stage.
6. On 16.10.2025, opposite party nos.2 to 8 put in appearance through their counsel before the Magistrate and filed an application on the maintainability of the complaint and on the same date i.e. 16.10.2025, the Magistrate recorded the statement of complainant. When the copy of the statement of the complainant was provided it came to the knowledge of the applicant that the statement of the complainant was recorded under Section 223 of Bhartiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS") instead of Section 200 CrPC. It has been submitted that proceeding under Section 190 CrPC has been instituted by the applicant, therefore, it is incumbent upon the Magistrate to proceed in the case as per provisions of CrPC. The applicant moved an application on 24.11.2025 stating therein that proceedings of the complaint filed by the applicant should be done as per provisions of CrPC and BNSS would not be applicable in his case. In pursuance of the application, the impugned order dated 17.01.2026 has been passed by the Magistrate.
7. He has relied on paragraphs 7, 14 and 16 of the judgment passed by Division Bench of this Court at Allahabd in Deepu v. State of U.P., 2024 SCC OnLine All 4289 : 2024 SCC OnLine All 4289 : (2024) 6 All LJ 525 and has submitted that since the complaint was filed prior to enforcement of BNSS i.e. 01.07.2024, therefore, the procedure of CrPC will be applicable in the presence case not of BNSS.
8. On the other hand, Shri Chandra Kant Rai, learned counsel for opposite party nos.2, 5, 6, 7 and 8 has submitted that the statement of the complainant 16.10.2025 under Section 223 BNSS has been recorded and the Magistrate has to proceed in the case as per provision of BNSS and not of CrPC.
9. He has further submitted that it is not the date of institution of complaint which is important rather it is the cognizance, which is important for considering the case whether the provisions of BNSS would be applicable.
10. I have heard learned counsel for the applicant, Shri Piyush Kumar Singh, learned AGA for opposite party no.1/State and Shri Chandra Kant Rai, learned counsel for opposite party nos.2, 5, 6, 7 and 8.
11. For sake of convenience, the paragraph 16 of the judgment passed in Deepu (Supra) is extracted herein-under:-
"16. On the basis of above analysis, this Court is also summarising the law regarding effect of repealing the IPC and Cr. P.C. by BNS and BNSS respectively and same is being mentioned as below:
(i) If an FIR is registered on or after 1.7.2024 for the offence committed prior to 1.7.2024, then FIR would be registered under the provisions of IPC but the investigation will continue as per BNSS.
(ii) In the pending investigation on 01.07.2024 (on the date of commencement of New Criminal Laws), investigation will continue as per the Cr. P.C. till the cognizance is taken on the police report and if any direction is made for further investigation by the competent Court then same will continue as per the Cr. P.C.;
(iii) The cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS.
(iv) Section 531(2)(a) of BNSS saved only pending investigation, trial, appeal, application and enquiry, therefore, if any trial, appeal, revision or application is commenced after 01.07.2024, the same will be proceeded as per the procedure of BNSS.
(v) The pending trial on 01.07.2024, if concluded on or after 01.07.2024 then appeal or revision against the judgment passed in such a trial will be as per the BNSS. However, if any application is filed in appeal, which was pending on 01.07.2024 then the procedure of Cr. P.C. will apply.
(vi) If the criminal proceeding or chargesheet is challenged before the High Court on or after 01.07.2024, where the investigation was conducted as per Cr. P.C. then same will be filed u/s 528 of BNSS not u/s 482 Cr. P.C."
12. The order dated 18.12.2024 passed by the learned Magistrate reveals that the case was registered as a complaint case. Subsequently, an application was moved by the applicant on 24.11.2025, praying that the case be proceeded with in accordance with the provisions of the CrPC. An important aspect to be highlighted is that although the complaint was initially filed on 07.02.2024, it came to be registered as a complaint case only on 18.12.2024, i.e., after the enforcement of BNSS with effect from 01.07.2024. Furthermore, the statement of the applicant/complainant under Section 223 of the BNSS was recorded on 16.10.2025. In such circumstances, the case of the applicant does not derive any support from the Division Bench judgment rendered in Deepu (Supra). As observed in paragraph 16 of the said judgment, the cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceeding including enquiry, trial or appeal would be conducted as per the procedure of BNSS.
13. In view of the aforesaid discussion, this Court finds that the Magistrate has rightly rejected the application filed by the applicant vide the impugned order. The application lacks merit and is, accordingly, rejected.
(Brij Raj Singh,J.)
April 15, 2026
Mohit Singh/-
