# Prempal & Ors v. State of U.P. & Anr

- **Citation:** (2025) 11 ILRA 1017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-26
- **Case number:** Application U/S 528 BNSS No. 1624 of 2025
- **Bench:** Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prempal-ors-v-state-of-u-p-anr-52609
- **Pages:** 30

## Headnote

cognizance under Section 210(1)(b) BNSS
(police report case) instead of Section 210(1)(a)
BNSS (complaint case) for a non-cognizable
offence.
Whether
the
impugned
cognizance-cumsummoning order dated 11.10.2024 is legally
sustainable.
Whether denial of safeguards under BNSS
amounts to violation of Article 21 of the
Constitution of India.

HEADNOTES
Criminal
Law
-
Bharatiya
Nagarik
Suraksha Sanhita, 2023 (BNSS) - Section
174(1)-(3), 193(3), 210(1)(a) & (b),
223(1), 215, 217, 218, 219, 222, 225, 226,
227, 274, 279, 280, 281, 289, 290, 300,
337, 400, 401, 514, 528, and Explanation
to Section 2(1)(h), 2(1)(x), 2(1)(z) -
Bharatiya Nyaya Sanhita, 2023 (BNS) -
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 115, 115(2), 352 - Constitution of
India - Article 21, - High Court Circulars -
dated
23.08.2018
and
19.07.2023
-
Application u/s 528 BNSS - challenging the
impugned cognizance-cum-summoning order -
N.C.R. - offences registered under Sections
115(2) and 352 BNS - assault and abuse
causing injuries - investigation - charge-sheet -
filed
under
Section
193(3)
BNSS,
and
cognizance taken under Section 210(1)(b) BNSS
treating it as police case - accused summoned -
applicants
pleaded
that
allegations
false,
charge-sheet in non-cognizable offence must be
treated as complaint under explanation to
Section 2(1)(h) BNSS, cognizance wrongly taken
under Section 210(1)(b), safeguards under
Sections 223, 225, 227 ignored, violation of
Article 21 - court finds that - magistrate erred in
treating police report as state case instead of
complaint, failed to provide opportunity of
hearing, violated BNSS provisions and Article
21; also noted omission of Magistrate's name/ID
in order - held - cognizance of non-cognizable
offence must be taken as complaint under
Section 210(1)(a) BNSS - hence, impugned
order quashed, matter remanded for fresh
cognizance
in
conformity
with
law.
-
consequently, Application under Section 528
BNSS is disposed of, summoning order set
aside, directions issued to Magistrates for future
compliance also.(Para - 15, 16, 20, 21, 25)

Application Allowed. (E-11)

CASE LAW CITED
Sirajul v. State of U.P. (2015) 9 SCC 201 -
Ravinder Kaur v. Anil Kumar (2015) 8 SCC 286 -
Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC
638, - Alok Kumar Shukla v. State of U.P. (2023)
- Hemant Tiwari v. State of U.P. (2022) - Smt.
Geeta v. State of U.P. (2022).

LIST OF ACTS
Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS) - Bharatiya Nyaya Sanhita, 2023 (BNS) -
Constitution of India (Article 21) - Relevant High
Court Circulars (23.08.2018, 19.07.2023).

LIST OF KEYWORDS
Non-cognizable offence - Complaint case vs.
police report case - Cognizance under Section
210 BNSS - Summons-case procedure - Article
21 violation - Abuse of process - Quashing of
proceedings - Inherent powers of High Court
(Section 528 BNSS) - mandatory provisions -
summons-case - non-cognizable offence - chief
judicial magistrate - Explanation - inherent
jurisdiction - fundamental duties - distinction
between a trial of summons-case and instituted
on a complaint and a trial of summons-case
instituted on a police report - victim -
remanded - afresh order.

CASE ARISING FROM
N.C.R. No. 178 of 2024, Police Station Tilhar,
District Shahjahanpur - Charge-sheet dated
05.10.2024 under Sections 115(2) and 352 BNS
- Summoning order dated 11.12.2024 in Case
No. 12922/2024 (State vs. Prempal).

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Shaheen Bano,
Shahnawaz Khan,
Counsel for Respondent(s): GA.

## Text

_Characters 0–39,324 of 91,656. This is a partial read: ask again with offset=39324 for what follows._

11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1017

69. I am of the considered opinion that
an appeal will lie under Order XLIII Rule
1(r) against an order of ex-parte temporary
injunction passed by trial court in exercise
of powers under Rule 1 and 2 of Order
XXXIX C.P.C. Party aggrieved can also
approach the same court under Rule 4 of
Order XXXIX, if he so desires. Both the
remedies are concurrent and can be availed
by the party aggrieved. It is open to the
party aggrieved by an ex-parte order of
injunction to proceed even simultaneously
and when one opts for both the remedies,
the success or defeat in one or the other
may have the impact on the result of other,
which is decided later. Such a matter is to
be taken into account by the court dealing
with such cases and weigh the impact of
the situation in a given case depending on
the facts and circumstances of the case and
questions raised therein.

70. I do not find any substance in the
submissions of the learned counsel for the
petitioner that an appeal will not lie under
Order XLIII Rule 1(r) C.P.C. against an exparte order of temporary injunction passed
by the trial court or that the appeal, if any,
can be filed against order of ex-parte
temporary injunction under Order XLIII
Rule 1(r) C.P.C. not before the expiry of
six months from the date of order of exparte temporary injunction. An appeal can
be filed under Order XLIII Rule 1(r) C.P.C.
against an order of ex-parte temporary
injunction by the party aggrieved with the
order of ex-parte temporary injunction
within the limitation period as provided by
the Limitation Act, 1963. Since in this
petition an order of ex-parte temporary
injunction has been challenged by the
petitioner, I am of the view that no relief
can be granted to the petitioner in view of
availability of alternative remedy of appeal
under Order XLIII Rule 1(r) C.P.C. as well
as to file an application under Order
XXXIX Rule 4 C.P.C.

71. The writ petition is disposed of
with liberty to the petitioner to avail the
remedy as available to him under law.
----------
(2025) 11 ILRA 1017
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2025

BEFORE

THE HON'BLE PRAVEEN KUMAR GIRI, J.

Application U/S 528 BNSS No. 1624 of 2025

Prempal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Shaheen Bano, Shahnawaz Khan

Counsel for the Opposite Parties:
G.A.

ISSUE FOR CONSIDERATION
Whether the Judicial Magistrate erred in taking
cognizance under Section 210(1)(b) BNSS
(police report case) instead of Section 210(1)(a)
BNSS (complaint case) for a non-cognizable
offence.
Whether
the
impugned
cognizance-cumsummoning order dated 11.10.2024 is legally
sustainable.
Whether denial of safeguards under BNSS
amounts to violation of Article 21 of the
Constitution of India.

HEADNOTES
Criminal
Law
-
Bharatiya
Nagarik
Suraksha Sanhita, 2023 (BNSS) - Section
174(1)-(3), 193(3), 210(1)(a) & (b),
223(1), 215, 217, 218, 219, 222, 225, 226,
227, 274, 279, 280, 281, 289, 290, 300,
337, 400, 401, 514, 528, and Explanation
to Section 2(1)(h), 2(1)(x), 2(1)(z) -
Bharatiya Nyaya Sanhita, 2023 (BNS) -
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 115, 115(2), 352 - Constitution of
India - Article 21, - High Court Circulars -
dated
23.08.2018
and
19.07.2023
-
Application u/s 528 BNSS - challenging the
impugned cognizance-cum-summoning order -
N.C.R. - offences registered under Sections
115(2) and 352 BNS - assault and abuse
causing injuries - investigation - charge-sheet -
filed
under
Section
193(3)
BNSS,
and
cognizance taken under Section 210(1)(b) BNSS
treating it as police case - accused summoned -
applicants
pleaded
that
allegations
false,
charge-sheet in non-cognizable offence must be
treated as complaint under explanation to
Section 2(1)(h) BNSS, cognizance wrongly taken
under Section 210(1)(b), safeguards under
Sections 223, 225, 227 ignored, violation of
Article 21 - court finds that - magistrate erred in
treating police report as state case instead of
complaint, failed to provide opportunity of
hearing, violated BNSS provisions and Article
21; also noted omission of Magistrate's name/ID
in order - held - cognizance of non-cognizable
offence must be taken as complaint under
Section 210(1)(a) BNSS - hence, impugned
order quashed, matter remanded for fresh
cognizance
in
conformity
with
law.
-
consequently, Application under Section 528
BNSS is disposed of, summoning order set
aside, directions issued to Magistrates for future
compliance also.(Para - 15, 16, 20, 21, 25)

Application Allowed. (E-11)

CASE LAW CITED
Sirajul v. State of U.P. (2015) 9 SCC 201 -
Ravinder Kaur v. Anil Kumar (2015) 8 SCC 286 -
Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC
638, - Alok Kumar Shukla v. State of U.P. (2023)
- Hemant Tiwari v. State of U.P. (2022) - Smt.
Geeta v. State of U.P. (2022).

LIST OF ACTS
Bharatiya Nagarik Suraksha Sanhita, 2023
(BNSS) - Bharatiya Nyaya Sanhita, 2023 (BNS) -
Constitution of India (Article 21) - Relevant High
Court Circulars (23.08.2018, 19.07.2023).

LIST OF KEYWORDS
Non-cognizable offence - Complaint case vs.
police report case - Cognizance under Section
210 BNSS - Summons-case procedure - Article
21 violation - Abuse of process - Quashing of
proceedings - Inherent powers of High Court
(Section 528 BNSS) - mandatory provisions -
summons-case - non-cognizable offence - chief
judicial magistrate - Explanation - inherent
jurisdiction - fundamental duties - distinction
between a trial of summons-case and instituted
on a complaint and a trial of summons-case
instituted on a police report - victim -
remanded - afresh order.

CASE ARISING FROM
N.C.R. No. 178 of 2024, Police Station Tilhar,
District Shahjahanpur - Charge-sheet dated
05.10.2024 under Sections 115(2) and 352 BNS
- Summoning order dated 11.12.2024 in Case
No. 12922/2024 (State vs. Prempal).

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Shaheen Bano,
Shahnawaz Khan,
Counsel for Respondent(s): GA.

(Delivered by Hon'ble Praveen Kumar
Giri, J.)

1. The present Criminal Miscellaneous
Application has been instituted under
Section 528 of the Bharatiya Nagarik
Suraksha
Sanhita,
2023
(BNSS)
(corresponding to Section 482 of the Code
of Criminal Procedure) with a prayer to
the quash the impugned charge-sheet dated
05.10.2024 arising out of N.C.R. No. 178
of 2024, registered under Sections 115(2)
and 352 of the BNS at Police Station
Tilhar, District Shahjahanpur, along with
the summoning order dated 11.12.2024
passed in Case No. 12922/2024 (State vs.
Prempal).

2. The brief fact of case are that on
the written information of the opposite
party No.2 regarding the alleged incident
dated 10.08.2024 occurred at 2.30 p.m.,
Non-cognizable Report as per section 174
Bharatiya
Nagarik
Suraksha
Sanhita
(BNSS) 2023 (corresponding Section 155
Cr.P.C.) was registered as N.C.R. No. 178
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1019
of 2024, under sections 115(2) Bharatiya
Nyaya Sanhita (corresponding section 323
I.P.C.) and section 352 Bharatiya Nyaya
Sanhita (corresponding section 504 I.P.C.)
in
Police
Station-Tilhar,
DistrictShahjahanpur on 10.08.2024 against the
alleged accused persons/applicants.

3. The allegation mentioned in the
N.C.R. is that the opposite party No.2,
Ramnath,
and
the
applicants
are
neighbours, and the dispute relates to toilet
waste drainage. It is alleged that applicants
have received government funding to build
a soak-pit toilet, but they constructed a
waste - water flowing toilet through
drainage in the wrong manner. Because of
this, dirty waste- water from Prempal's
toilet flows into the open drain and reaches
in front of Ramnath's house. Ramnath had
asked Prempal many times to repair it, but
Prempal did nothing. On 10.08.2024 at
about 02.30 p.m., a large amount of waste
again came into the drain near Ramnath's
house. When Ramnath complained about
this, Prempal's son Shriram became angry
and abused him. After hearing the noise,
Prempal's wife, Premwati and his sons,
Akhilesh and Neeraj, came there with
sticks. They beat Ramnath and also abused
him. When Ramnath's son Gautam alias
Jaipal and his wife Rajkumar tried to save
him, the accused persons beat them too and
caused serious injuries.

4. Learned counsel for the applicants
submits that the N.C.R. case lodged by
opposite party No.2 is totally false, forged
and concocted and has been filed only to
harass the applicants. It is submitted that
the opposite party No. 2 has deliberately
made a false story regarding the flow of toilet
waste towards his house. It is further
submitted that the applicants never assaulted
or abused anyone, and the entire narration
made in the N.C.R. has been created only
with the intention of harassing the applicants.
The learned counsel further submits that the
applicants have no criminal history. It is
contended that the applicants are innocent
and no offence is made out against them;
therefore, the proceedings are liable to be
quashed.

5. The learned counsel for the applicant
also submits that the impugned cognizancecum-summoning order is passed under
Section 115 and 352 BNS in a noncognizable offence punishable up to 2 years
ignoring the provisions of Explanation to
Section 2(1)(h) BNSS not treating the
police report as complaint and took
cognizance under Section 210(1)(b) BNSS
rather than under Section 210(1)(a) BNSS
amounts to abuse of process of Court or
Code and liable to be quashed in the
interest of justice.

6. Sri Prateek Tyagi, learned A.G.A. for
the State, submits that the factual aspects of
this matter cannot be seen at this stage.
Therefore, the order impugned is in
accordance with the law.

7. This Court has gone through the
record of this case as well as provisions of
law and law laid down by the Hon'ble
Supreme Court and the High Courts, and
thereafter proceeded in this case.

8. On the written complaint of the
opposite party No.2, an N.C.R. was registered
under Section 115(2), and Section 352 BNS
as per the provisions of Section 174(1) BNSS
and after obtaining order of investigation
under Section 174(2) BNSS from the Judicial
Magistrate, the investigating officer took
investigation under Section 174(3) BNSS and
proceeded and made charge sheet against the
applicants.
1020 INDIAN LAW REPORTS ALLAHABAD SERIES

The provisions of Section 115
and 352 of the BNS and Section 174 BNSS
are delineated below:-

''Section
115.
Voluntarily
causing hurt.-(1) Whoever does any act
with the intention of thereby causing hurt
to any person, or with the knowledge that
he is likely thereby to cause hurt to any
person, and does thereby cause hurt to
any person, is said "voluntarily to cause
hurt".

(2) Whoever, except in the case
provided for by sub-section (1) of section
122 voluntarily causes hurt, shall be
punished with imprisonment of either
description for a term which may extend
to one year, or with fine which may extend
to ten thousand rupees, or with both.

Section 352. Intentional insult
with intent to provoke breach of peace. -
Whoever intentionally insults in any manner,
and thereby gives provocation to any person,
intending or knowing it to be likely that such
provocation will cause him to break the
public peace, or to commit any other offence,
shall be punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both."

"Section 174. Information as to
non-cognizable cases and investigation of
such cases.

(1) When information is given to
an officer in charge of a police station of
the commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may by rules prescribe
in this behalf, and, -

(i) refer the informant to the
Magistrate;

(ii) forward the daily diary report
of all such cases fortnightly to the
Magistrate.

(2) No police officer shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving
such order may exercise the same powers
in respect of the investigation (except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.

(4) Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable."

9. The investigation was received by
the Investigating Officer (I.O.) under
section 174(3) of the BNSS as an order of
investigation was passed by the competent
Judicial Magistrate under section 174(2) of
the BNSS,2023, for investigation of the
non-cognizable offence. (referred in the
charge sheet dated 05.10.2024).

10. On 05.10.2024, as per section
193(3) of BNSS (corresponding Section
173(2) Cr.P.C.), after completion of the
investigation, the Investigating Officer
prepared and forwarded a police report
i.e.charge sheet under sections 115(2) and
352 BNS disclosing commission of a noncognizable offence punishable with the
imprisonment up to two years to a Judicial
Magistrate, District Shahjahanpur to take
cognizance of the offence on the police
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1021
report.
In
the
police
report,
the
Investigating Officer has also mentioned
the names of the accused persons and the
witnesses to the incident, along with their
full particulars.

The provision of section 193
BNSS is being delineated below:

Section 193. Report of police
officer on completion of investigation.
- (1) Every investigation under this
Chapter shall be completed without
unnecessary delay.

(2) The investigation in relation to an
offence under sections 64, 65, 66, 67, 68, 70, 71
of the Bharatiya Nyaya Sanhita, 2023 or under
sections 4, 6, 8 or section 10 of the Protection of
Children from Sexual Offences Act, 2012 shall
be completed within two months from the date
on which the information was recorded by the
officer in charge of the police station.

(3) (i) As soon as the investigation
is completed, the officer in charge of the
police station shall forward, including
through electronic communication to a
Magistrate empowered to take cognizance of
the offence on a police report, a report in the
form as the State Government may, by rules
provide, stating-

(a) the names of the parties;

(b)
the
nature
of
the
information;

(c) the names of the persons who
appear
to
be
acquainted
with
the
circumstances of the case;

(d) whether any offence appears
to have been committed and, if so, by
whom;

(e) whether the accused has been
arrested;

(f) whether the accused has been
released on his bond or bail bond;

(g) whether the accused has
been forwarded in custody under section
190;

(h) whether the report of medical
examination of the woman has been
attached where investigation relates to an
offence under sections 64, 65, 66, 67, 68,
70 or section 71 of the Bharatiya Nyaya
Sanhita, 2023;

(i) the sequence of custody in
case of electronic device;

(ii) the police officer shall, within
a period of ninety days, inform the progress
of the investigation by any means including
through electronic communication to the
informant or the victim;

(iii)
the
officer
shall
also
communicate, in such manner as the State
Government may, by rules, provide, the
action taken by him, to the person, if any,
by whom the information relating to the
commission of the offence was first given.

(4) Where a superior officer of
police has been appointed under section
177, the report shall, in any case in which
the State Government by general or special
order so directs, be submitted through that
officer, and he may, pending the orders of
the Magistrate, direct the officer in charge
of the police station to make further
investigation.

(5) Whenever it appears from a
report forwarded under this section that the
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
accused has been released on his bond or
bail bond, the Magistrate shall make such
order for the discharge of such bond or
bail bond or otherwise as he thinks fit.

(6) When such report is in respect
of a case to which section 190 applies, the
police
officer
shall
forward
to
the
Magistrate along with the report-

(a) all documents or relevant
extracts thereof on which the prosecution
proposes to rely other than those already
sent to the Magistrate during investigation;

(b) the statements recorded under
section 180 of all the persons whom the
prosecution proposes to examine as its
witnesses.

(7) If the police officer is of
opinion that any part of any such statement
is not relevant to the subject matter of the
proceedings or that its disclosure to the
accused is not essential in the interests of
justice and is inexpedient in the public
interest, he shall indicate that part of the
statement and append a note requesting the
Magistrate to exclude that part from the
copies to be granted to the accused and
stating his reasons for making such
request.

(8) Subject to the provisions
contained in sub-section (7), the police
officer investigating the case shall also
submit such number of copies of the police
report along with other documents duly
indexed to the Magistrate for supply to the
accused as required under section 230:

Provided that supply of report
and
other
documents
by
electronic
communication shall be considered as duly
served.

(9) Nothing in this section shall
be deemed to preclude further investigation
in respect of an offence after a report under
sub-section (3) has been forwarded to the
Magistrate
and,
where
upon
such
investigation, the officer in charge of the
police station obtains further evidence, oral
or documentary, he shall forward to the
Magistrate a further report or reports
regarding such evidence in the form as the
State Government may, by rules, provide;
and the provisions of sub-sections (3) to (8)
shall, as far as may be, apply in relation to
such report or reports as they apply in
relation to a report forwarded under subsection (3):

Provided
that
further
investigation during the trial may be
conducted with the permission of the Court
trying the case and the same shall be
completed within a period of ninety days
which may be extended with the permission
of the Court."

11.
On
11.12.2024,
the
learned
Judicial
Magistrate,
Tilhar,
District
Shahjahanpur, took cognizance of the
offences mentioned in the charge sheet
against
the
applicants
under
section210(1)(b)
BNSS
(corresponding
section 190(1)(b) Cr.P.C.), treating it as a
police case/state case rather than as a
complaint case under section 210(1)(a)
BNSS (corresponding section 190(1)(a)
Cr.P.C.).
Thereafter,
the
case
was
registered as Case No. 12922 of 2024
(State Vs Prempal) in the Court of the
Judicial Magistrate, and the accused
applicants were summoned to appear
before him on 11.01.2025.

12. The learned Judicial Magistrate
has also observed in the cognizance-cumsummoning order dated 11.12.2024 that he
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1023
had perused all the evidence collected by
the Investigating Officer and found that
offences of Section 115(2) and 352 BNS
are sufficiently proved against the accused
applicants. Therefore, the cognizance is
taken of the offences against the accused
applicants, and they are also summoned.
The
Judicial
Magistrate
Tilhar
Shahjahanpur has also not mentioned
his name, post and ID at the place of his
signature
on
the
cognizance-cumsummoning order dated 11.10.2024,
which is also against the circulars dated
23.08.2018 and 19.07.2023 issued by the
High Court. The attached cognizancecum-summoning order dated 11.10.2024 is
pasted herein below for perusal:

13.
The
provision
of
taking
cognizance of the offence has been
mentioned under section 210 BNSS, and
provision of summoning an accused has
been mentioned under section 227 BNSS.

The provisions of section 210
BNSS is being delineated below:

"Section 210. Cognizance of
offences by Magistrate. - (1) Subject to
the provisions of this Chapter, any
Magistrate of the first class, and any
Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence-

(a) upon receiving a complaint
of facts, including any complaint filed by a
person authorised under any special law,
which constitutes such offence;

(b)
upon
a
police
report
(submitted
in
any
mode
including
electronic mode) of such facts;

(c) upon information received
from any person other than a police officer,
or upon his own knowledge, that such
offence has been committed.

14. Before issuing a summons to an
accused in a complaint case, the Judicial
Magistrate must first satisfy the following
prerequisites.

(i) whether the Magistrate has
jurisdiction to try the case or notas per
section 197 BNSS (corresponding section
218 of Cr.P.C);

(ii) whether the case is time
barred or not as per section 514 BNSS
(corresponding section 468 of Cr.P.C.);
1024 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) whether the magistrate has
taken cognizance under section 210 (1)(a)
as a complaint case or not.

(iv) whether the alleged accused
resides within the jurisdiction of the
Magistrate or not and if the accused
resides at a place beyond the area in which
he exercises his jurisdiction, he shall
conduct
an
enquiry
or
direct
for
investigation as per Section 225(1) of
BNSS
(corresponding
section
202(1)
Cr.P.C.) to ascertain as the alleged
incident occurred in his jurisdiction.

(v) whether the Magistrate has
given an opportunity of hearing to the
alleged accused or not, as per Section
223(1) first proviso of the BNSS (no
corresponding provision in the Cr.P.C.).

(vi)
whether
the
list
of
prosecution witnesses has been filed by the
complainant or not as per section 227(2) of
BNSS
(corresponding
section
204(2)
Cr.P.C.)

(vii) whether the complainant is a
public
servant
or
not
and
if
the
complainant is a public servant and for
discharging of his official duties, he has
made a written complaint before the
judicial magistrate, then no need to record
the statement of the complainant as well as
the witnesses as per section 223(1) Second
Proviso (a) of BNSS (corresponding section
200(1) First Proviso (a) Cr.P.C.).

(viii) If a complaint is filed
against a public servant, the magistrate
shall not take cognizance without providing
opportunity of hearing to the public servant
as the offence is committed in course of the
discharge of his official duty as per
provision of section 223(2)(a) of BNSS,
2023.

(ix)
If
charge-sheet
(police
report) has been made in a non-cognizable
offence, the charge-sheet (police report)
shall be deemed to be complaint as per
Explanation to Section 2(1)(h) BNSS
(corresponding section 2(d) Explanation
Cr.P.C.) and took cognizance under
Section 210(1)(a) BNSS (corresponding
section 190(1)(a) Cr.P.C.).

(x)
Before
summoning,
the
learned Magistrate has to take care
whether a previous sanction is required for
taking cognizance of the offence as
required
under
Section
217
BNSS
(corresponding Section 196 Cr.P.C.) and
218 BNSS (corresponding Section 197
Cr.P.C.).

(xi)
Before
summoning
any
person
as an accused,
the
judicial
magistrate
has
to
ascertain
whether
cognizance of the offences has been taken
except on complaint in writing as required
under Sections 215 BNSS (corresponding
Section
195
Cr.P.C.),
219
BNSS
(corresponding Section 198 Cr.P.C.), 220
BNSS
(corresponding
Section
198-A
Cr.P.C.), 221 BNSS (corresponding Section
Cr.P.C.198-B)
and
222
BNSS
(corresponding Section 199 Cr.P.C.).

The provisions of section 197,
514,
210(1)(a),
Section
223(1)
First
Proviso, Section 223(1) Second Proviso (a),
215, 217, 218, 219, 220, 221 &222 of
BNSS are being delineated below:

"Section 197. Ordinary place of
inquiry and trial. -Every offence shall
ordinarily be inquired into and tried by a
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1025
Court within whose local jurisdiction it
was committed.

Section 514. Bar to taking
cognizance after lapse of period of
limitation. - (1) Except as otherwise
provided in this Sanhita, no Court shall
take cognizance of an offence of the
category specified in sub-section (2), after
the expiry of the period of limitation.

(2) The period of limitation shall
be-

(a) six months, if the offence is
punishable with fine only;

(b) one year, if the offence is
punishable with imprisonment for a term
not exceeding one year;

(c) three years, if the offence is
punishable with imprisonment for a term
exceeding one year but not exceeding three
years.

(3) For the purposes of this
section, the period of limitation, in relation
to offences which may be tried together,
shall be determined with reference to the
offence which is punishable with the more
severe punishment or, as the case may be,
the most severe punishment.

Explanation. -For the purpose
of computing the period of limitation, the
relevant date shall be the date of filing
complaint under section 223 or the date of
recording of information under section
173.

"Section 210. Cognizance of
offences by Magistrate. - (1) Subject to
the provisions of this Chapter, any
Magistrate of the first class, and any
Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence-

(a) upon receiving a complaint
of facts, including any complaint filed by a
person authorised under any special law,
which constitutes such offence;

Section 223 (1) A Magistrate
having jurisdiction while taking cognizance of
an offence on complaint shall examine upon
oath the complainant and the witnesses
present, if any, and the substance of such
examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate:

Provided that no cognizance of
an offence shall be taken by the Magistrate
without giving the accused an opportunity
of being heard:

Provided further that when the
complaint
is
made
in
writing,
the
Magistrate
need
not
examine
the
complainant and the witnesses-

Section 223 (2) A Magistrate
shall not take cognizance on a complaint
against a public servant for any offence
alleged to have been committed in course
of the discharge of his official functions or
duties unless-

(a) such public servant is given
an opportunity to make assertions as to the
situation that led to the incident so alleged;
and (b) a report containing facts and
circumstances of the incident from the
officer superior to such public servant is
received.

Explanation to Section 2(1)(h) of
BNSS :- A report made by a police officer
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
in
a
case
which
discloses,
after
investigation, the commission of a noncognizable 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;

Section 215. Prosecution for
contempt of lawful authority of public
servants, for offences against public justice
and for offences relating to documents
given in evidence. - (1) No Court shall
take cognizance-

(a) (i) of any offence punishable
under sections 206 to 223 (both inclusive
but excluding section 209) of the Bharatiya
Nyaya Sanhita, 2023; or

(ii) of any abetment of, or attempt
to commit, such offence; or

(iii) of any criminal conspiracy to
commit such offence,

except on the complaint in
writing of the public servant concerned or
of some other public servant to whom he is
administratively subordinate or of some
other public servant who is authorised by
the concerned public servant so to do;

(b) (i) of any offence punishable
under any of the following sections of the
Bharatiya Nyaya Sanhita, 2023, namely,
sections 229 to 233 (both inclusive), 236,
237, 242 to 248 (both inclusive) and 267,
when such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court; or

(ii) of any offence described in
sub-section
(1)
of
section
336,
or
punishable under sub-section (2) of section
340 or section 342 of the said Sanhita,
when such offence is alleged to have been
committed in respect of a document
produced or given in evidence in a
proceeding in any Court; or

(iii) of any criminal conspiracy to
commit, or attempt to commit, or the
abetment of, any offence specified in subclause (i) or sub-clause (ii),

except on the complaint in
writing of that Court or by such officer of
the Court as that Court may authorise in
writing in this behalf, or of some other
Court to which that Court is subordinate.

Section 217. Prosecution for
offences against State and for criminal
conspiracy to commit such offence. - (1)
No Court shall take cognizance of-

(a) any offence punishable under
Chapter VII or under section 196, section
299 or sub-section (1) of section 353 of the
Bharatiya Nyaya Sanhita, 2023; or

(b) a criminal conspiracy to
commit such offence; or

(c) any such abetment, as is
described in section 47 of the Bharatiya
Nyaya Sanhita, 2023, except with the
previous
sanction
of
the
Central
Government or of the State Government.

(2)
No
Court
shall
take
cognizance of-

(a) any offence punishable under
section 197 or sub-section (2) or subsection (3) of section 353 of the Bharatiya
Nyaya Sanhita, 2023; or

(b) a criminal conspiracy to
commit such offence, except with the
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1027
previous
sanction
of
the
Central
Government or of the State Government or
of the District Magistrate.

(3)
No
Court
shall
take
cognizance of the offence of any criminal
conspiracy punishable under sub-section
(2) of section 61 of the Bharatiya Nyaya
Sanhita, 2023, other than a criminal
conspiracy
to
commit
an
offence
punishable with death, imprisonment for
life or rigorous imprisonment for a term of
two years or upwards, unless the State
Government or the District Magistrate has
consented in writing to the initiation of the
proceedings:

Provided that where the criminal
conspiracy is one to which the provisions of
section 215 apply, no such consent shall be
necessary.

(4) The Central Government or
the
State
Government
may,
before
according sanction under sub-section (1)
or
sub-section
(2) and
the
District
Magistrate may, before according sanction
under sub-section (2) and the State
Government or the District Magistrate
may, before giving consent under subsection
(3),
order
a
preliminary
investigation by a police officer not being
below the rank of Inspector, in which case
such police officer shall have the powers
referred to in sub-section (3) of section
174.

Section 218. Prosecution of
Judges and public servants. - (1) When
any person who is or was a Judge or
Magistrate or a public servant not
removable from his office save by or with
the sanction of the Government is accused
of any offence alleged to have been
committed
by
him
while
acting
or
purporting to act in the discharge of his
official
duty,
no
Court
shall
take
cognizance of such offence except with the
previous sanction save as otherwise
provided in the Lokpal and Lokayuktas Act,
2013 (1 of 2014) -

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government:

Provided that where the alleged
offence was committed by a person referred
to in clause (b) during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression "State Government" occurring
therein,
the
expression
"Central
Government" were substituted:

Provided
further
that
such
Government shall take a decision within a
period of one hundred and twenty days
from the date of the receipt of the request
for sanction and in case it fails to do so, the
sanction shall be deemed to have been
accorded by such Government:

Provided also that no sanction
shall be required in case of a public
servant accused of any offence alleged to
have been committed under section 64,
section 65, section 66, section 68, section
69, section 70, section 71, section 74,
section 75, section 76, section 77, section
78, section 79, section 143, section 199 or
1028 INDIAN LAW REPORTS ALLAHABAD SERIES
section 200 of the Bharatiya Nyaya
Sanhita, 2023.

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may,
by notification, direct that the provisions of
sub-section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub-section will apply as
if for the expression "Central Government"
occurring therein, the expression "State
Government" were substituted.

(4) Notwithstanding anything
contained in sub-section (3), no Court
shall take cognizance of any offence,
alleged to have been committed by any
member of the Forces charged with the
maintenance of public order in a State
while acting or purporting to act in the
discharge of his official duty during the
period while a Proclamation issued under
clause
(1)
of
article
356
of
the
Constitution was in force therein, except
with the previous sanction of the Central
Government.

(5) The Central Government or
the State Government, may determine the
person by whom, the manner in which, and
the offence or offences for which, the
prosecution of such Judge, Magistrate or
public servant is to be conducted, and may
specify the Court before which the trial is
to be held.

Section 219. Prosecution for
offences against marriage. - (1) No
Court shall take cognizance of an offence
punishable under sections 81 to 84 (both
inclusive) of the Bharatiya Nyaya Sanhita,
2023 except upon a complaint made by
some person aggrieved by the offence:

Provided that-

(a) where such person is a child,
or is of unsound mind or is having
intellectual disability requiring higher
support needs, or is from sickness or
infirmity unable to make a complaint, or is
a woman who, according to the local
customs and manners, ought not to be
compelled to appear in public, some other
person may, with the leave of the Court,
make a complaint on his or her behalf;

(b) where such person is the
husband and he is serving in any of the
Armed
Forces
of
the
Union
under
conditions which are certified by his
Commanding Officer as precluding him
from obtaining leave of absence to enable
him to make a complaint in person, some
other person authorised by the husband in
accordance with the provisions of subsection (4) may make a complaint on his
behalf;

(c) where the person aggrieved
by an offence punishable under section 82
of the Bharatiya Nyaya Sanhita, 2023 is the
wife, complaint may be made on her behalf
by her father, mother, brother, sister, son
or daughter or by her father's or mother's
brother or sister, or, with the leave of the
Court, by any other person related to her
by blood, marriage or adoption.

(2) For the purposes of subsection (1), no person other than the
11 All. Prempal & Ors. Vs. State of U.P. & Anr.
1029
husband of the woman shall be deemed to
be aggrieved by any offence punishable
under section 84 of the Bharatiya Nyaya
Sanhita, 2023.

(3) When in any case falling
under clause (a) of the proviso to subsection (1), the complaint is sought to be
made on behalf of a child or of a person of
unsound mind by a person who has not
been appointed or declared by a competent
authority to be the guardian of the child, or
of the person of unsound mind, and the
Court is satisfied that there is a guardian
so appointed or declared, the Court shall,
before granting the application for leave,
cause notice to be given to such guardian
and give him a reasonable opportunity of
being heard.

(4) The authorisation referred to
in clause (b) of the proviso to sub-section
(1), shall be in writing, shall be signed or
otherwise attested by the husband, shall
contain a statement to the effect that he has
been informed of the allegations upon
which the complaint is to be founded, shall
be countersigned by his Commanding
Officer, and shall be accompanied by a
certificate signed by that Officer to the
effect that leave of absence for the purpose
of making a complaint in person cannot for
the time being be granted to the husband.

(5) Any document purporting to
be such an authorisation and complying
with the provisions of sub-section (4), and
any document purporting to be a certificate
required by that sub-section shall, unless
the contrary is proved, be presumed to be
genuine and shall be received in evidence.

(6)
No
Court
shall
take
cognizance of an offence under section 64
of the Bharatiya Nyaya Sanhita, 2023,
where such offence consists of sexual
intercourse by a man with his own wife,
the wife being under eighteen years of age,
if more than one year has elapsed from the
date of the commission of the offence.

Section 220. Prosecution of
offences under section 85 of Bharatiya
Nyaya Sanhita, 2023. - No Court shall
take cognizance of an offence punishable
under section 85 of the Bharatiya Nyaya
Sanhita, 2023 except upon a police report
of facts which constitute such offence or
upon a complaint made by the person
aggrieved by the offence or by her father,
mother, brother, sister or by her father's or
mother's brother or sister or, with the leave
of the Court, by any other person related to
her by blood, marriage or adoption.

Section
221.
Cognizance
of
offence.
-
No
Court
shall
take
cognizance of an offence punishable under
section 67 of the Bharatiya Nyaya Sanhita,
2023 where the persons are in a marital
relationship, except upon prima facie
satisfaction of the facts which constitute the
offence upon a complaint having been filed
or made by the wife against the husband.

Section 222. Prosecution for
defamation. - (1) No Court shall take
cognizance of an offence punishable under
section 356 of the Bharatiya Nyaya
Sanhita, 2023 except upon a complaint
made by some person aggrieved by the
offence:

Provided that where such person
is a child, or is of unsound mind or is
having intellectual disability or is from
sickness or infirmity unable to make a
complaint, or is a woman who, according
to the local customs and manners, ought
not to be compelled to appear in public,
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
some other person may, with the leave of
the Court, make a complaint on his or her
behalf.