[Cites 6, Cited by 0]
Allahabad High Court
Rambhresh Pandey vs State Of U.P. And Another on 31 March, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:67829
HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 13525 of 2025
Rambhresh Pandey
.....Petitioner(s)
Versus
State of U.P. and Another
.....Respondent(s)
Counsel for Petitioner(s)
:
Ankit Pandey, Deepak Gaur
Counsel for Respondent(s)
:
G.A.
Court No. - 89
HON'BLE ANIL KUMAR-X, J. 1. Shri Ankit Pandey, learned counsel for the petitioner and Shri R.K. Singh, learned AGA for the State are present.
2. This petition under Article 227 of the Constitution of India has been filed with the following main prayers :-
"1. to set aside the impugned order dated 02.08.2025 passed by the Learned Additional Sessions Judge, Court No. 1, Etawah, in Criminal Revision No. 53 of 2025 (Rambresh Pandey v. State of U.P. and Another), arising out of Case Crime No. 0331 of 2024, registered under Sections 115(2) and 351(2) of the Bharatiya Nyaya Sanhita, 2023, Police Station Friends Colony, District Etawah.
II. Quash the charge sheet bearing No. 258/2024, dated 29.11.2024, filed under Sections 115 (2), 351 (2) of the Bharatiya Nyaya Sanhita, 2023, arising out of Case Crime No.0331 of 2024, P. S. Friends Colony, District Etawah.
III. Quash the impugned cognizance/summoning order dated 07.02.2025, passed by the learned Chief Judicial Magistrate, Etawah, in relation to Case Crime No.0331 of 2024 under Sections 115 (2), 351 (2) of the Bharatiya Nyaya Sanhita, 2023, P. S. Friends Colony, District Etawah.
IV. Quash the entire further criminal proceedings of Criminal Case No. 747 of 2025 (State vs. Rambresh), pending before the Learned Chief Judicial Magistrate, Etawah, under Sections 115 (2), 351 (2) of the Bharatiya Nyaya Sanhita, 2023, arising out of Case Crime No.0331 of 2024, P. S. Friends Colony, District Etawah.
V. Stay further criminal proceedings in Criminal Case No. 747 of 2025 (State vs. Rambresh), pending before the Learned Chief Judicial Magistrate, Etawah, under Sections 115 (2), 351 (2) of the Bharatiya Nyaya Sanhita, 2023, arising out of Case Crime No.0331 of 2024, P. S. Friends Colony, District Etawah, during the pendency of the present Criminal Misc. Application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, before this Hon'ble Court."
3. Learned counsel for the petitioner submitted that an FIR in Case Crime No.0331 of 2024 under Section 115(2), 351(2) BNS, Police Station-Friends Colony, District Etawah was lodged against the petitioner by the private respondent no.2. Subsequent to the investigation, the charge-sheet under Section 115(2) and 351(2) BNS was also submitted by the Investigating Officer, upon which an order of cognizance was passed by the learned Chief Judicial Magistrate, Etawah on 7.2.2025. Aggrieved by the said order dated 7.2.2025, Criminal Revision No.53 of 2025 (Rambresh Pandey vs. State of U.P. & Anr.). Even the said criminal revision was also dismissed on 2.85.2028 without considering that investigation in non-cognizable offence is impressible without prior permission of Magistrate. BNS as well as Cr.P.C. prohibits lodging of first information report for non-cognizable offences. Therefore, lodging of FIR in non-cognizable offence and subsequent taking cognizance upon the charge-sheet also in non-cognizable offence, is illegal and, hence, the entire criminal proceedings are liable to be set aside.
4. Learned AGA for the State fairly conceded that offences against the petitioner are non-cognizable and FIR in such cases as well as its investigation and order for taking cognizance upon the charge-sheet in non-cognizable offences pursuant to lodging of FIR is unsustainable and has been prohibited under the BNS as well as Cr.P.C.
5. Heard learned counsel for the parties and perused the records.
6. Short question for consideration in this case is whether an FIR in non-cognizable offences can be lodged and if the same has been lodged and a charge-sheet subsequent to the investigation has also been submitted, whether in such cases, a Magistrate is empowered to take cognizance upon the said charge-sheet.
7. It will be pertinent to refer to the judgment of Hon'ble Supreme Court in Keshav Lal Thakur vs. State of Bihar, AIR OnLine 1996 SC 1175, wherein it has been held as under :-
?On a report lodged by Jnanerdra Parchchya, Anu Mandal Padadhikari, Gooda, a case under Section 31 of the Representation of Peoples Act, 1950 ('Act' for short) was registered against Keshav Lal Thakur, the appellant herein, by Thakur Gangti Police Station and on completion of investigation a report in final form was submitted praying for his discharge on the ground that the offence was a non- cognizable one. On that report the Chief Judicial Magistrate, Godda, took cognizance as in his view, a prima facies case was made out against the appellant; and aggrieved thereby he moved a petition under Section 482 Dr. P.C. before the Patna High Court wherein he contended, inter alia, that the cognizance was barred by limitation under Section 468 Dr. P.C. A learned Judge of the High Court, who entertained the petition, ultimately dismissed the same being of the view that under Section 473 Dr. P.C. cognizance could be taken beyond the period of limitation. The above order of the High Court is under challenge us in this appeal.
We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Dr. P.C. of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Dr. P.C. but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the proviso to Section 2 (d) Dr. P.C., which defines 'complaint', the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a 'complaint' of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence - unlike the present one - but ultimately finds that only a non-cognizable offence has been made out."
8. Therefore, it is evident from the said judgment, that a police report for a non-cognizable offence can only be treated as a complaint if the investigation commenced as a cognizable case. If the police knowingly investigate a non-cognizable offence without a Magistrate's order, the report is invalid, and cognizance taken upon it is liable to be quashed.
9. In view of the aforesaid, the order dated 7.2.2025 passed by the learned Chef Judicial Magistrate, Etawah, the order dated 2.8.2025 passed in Criminal Revision No.53 of 2025 and the charge-sheet as well as entire criminal proceedings of Case No.747 of 2025 (State vs. Rambresh) arising out of Case Crime No.0331 of 2024 under Section 115(2), 351(2) BNS, Police Station-Friends Colony, District Etawah, pending in the court of learned Chief Judicial Magistrate, Etawah are hereby set aside.
10. This petition is, accordingly, allowed.
(Anil Kumar-X,J.)
March 31, 2026
SK
