# Vinay & Anr v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2025) 6 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-06-03
- **Case number:** Application U/S 528 BNSS No. 526 of 2025
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-anr-v-state-of-u-p-anr-opp-parties-53578
- **Pages:** 5

## Headnote

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections 115(2), 352, 351(2),
118(1) & 109(1) - Bharatiya Nagarik
Suraksha Sanhita, 2023 - Section 174 -
Quashing of criminal proceedings - NCR
was lodged on 28.11.2024 under various
Sections of BNS for incident that occurred
on same day - Subsequently, medical
report revealed head injury caused by
sharp-edged weapon - Based on this,
another
Section
118(1),
BNS,
being
cognizable and non-bailable was added
and NCR was converted into FIR -
Thereafter chargesheet submitted - After
filing of charge sheet, Magistrate took
cognizance and issued summons, which is
under challenge - Petitioners had earlier
filed writ petitions but withdrew them on
02.05.2025 without liberty to raise same
grounds again - Those grounds are no
longer
available
-
Since
NCR
was
converted into FIR due to addition of
cognizable offence based on medical
report, police was legally empowered to
investigate - Considering overall facts, no
illegality
is
found
in
proceedings
-
Application lacks merit, dismissed. (Para
6, 12, 15)

Application dismissed. (E-13)
List of Cases cited:

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 6 ILRA 58
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.06.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Application U/S 528 BNSS No. 526 of 2025

Vinay & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Shashank Shukla, Prachi Shukla

Counsel for the Opp. Parties:
G.A.

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections 115(2), 352, 351(2),
118(1) & 109(1) - Bharatiya Nagarik
Suraksha Sanhita, 2023 - Section 174 -
Quashing of criminal proceedings - NCR
was lodged on 28.11.2024 under various
Sections of BNS for incident that occurred
on same day - Subsequently, medical
report revealed head injury caused by
sharp-edged weapon - Based on this,
another
Section
118(1),
BNS,
being
cognizable and non-bailable was added
and NCR was converted into FIR -
Thereafter chargesheet submitted - After
filing of charge sheet, Magistrate took
cognizance and issued summons, which is
under challenge - Petitioners had earlier
filed writ petitions but withdrew them on
02.05.2025 without liberty to raise same
grounds again - Those grounds are no
longer
available
-
Since
NCR
was
converted into FIR due to addition of
cognizable offence based on medical
report, police was legally empowered to
investigate - Considering overall facts, no
illegality
is
found
in
proceedings
-
Application lacks merit, dismissed. (Para
6, 12, 15)

Application dismissed. (E-13)
List of Cases cited:

1. Asif Khan Pathan Vs St. Through PP, High
Court of Bombay at Porvorim, Goa & ors.,
Criminal Writ Petition No. 573 of 2023 (F)

2. Shavez & ors. Vs St. of U.P. & anr., Application
u/s
482
No.
-
38936
of
2019,
MANU/UP/4929/2019
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Shashank Shukla,
learned counsel for the applicants and
learned AGA for the State and perused the
record.

2. This petition under Section 482
Cr.P.C. now Section 528 B.N.S.S. 2023 has
been filed challenging the summoning
order dated 04.03.2025 passed in CIS No.
12917 of 2025 and the charge sheet No.01
dated 05.02.2025, arising out of Case
Crime No. 420 of 2024 under Sections
115(2),
352,
351(2),
118(1),
109(1)
Bharatiya Nyaya Sanhita (B.N.S.), 2023,
Police Station-Katra Bazar, District-Gonda.

3.
Learned
counsel
for
the
applicants submits that on the basis of
identical set of facts a N.C.R. was
registered on 28.11.2024 but no permission
was sought for the investigation. He further
submits that on the same set of facts, the
FIR was lodged on 30.11.2024 and after
investigation, the charge sheet has been
filed, which could not have been done. He
relies on a judgment and order dated
16.10.2023 passed by the High Court of
Bombay at Goa in Criminal Writ Petition
No. 573 of 2023 (F) [Mr. Asif Khan
Pathan vs. State Through PP, High Court
of Bombay at Porvorim, Goa and Others].

4. Per contra, learned AGA submits
that after registration of the N.C.R., a
medical report was received, in which an
6 All. Vinay & Anr.Vs. State of U.P. & Anr.
59
injury in the head caused by sharp
edged weapon was found, therefore,
Section 118(1) B.N.S., 2023 was added and
accordingly, the N.C.R. was converted into
the FIR and registered accordingly. Thus,
the contention of the counsel for the
applicants is misconceived and not tenable.
He further submits that the petitioner No.1Vinay had earlier filed a Criminal Misc.
Writ Petition No. 387 of 2025 (Vinay vs.
State of U.P. And 3 Others) before Division
Bench of this Court and by means of order
dated 22.01.2025, the Division Bench of
this Court directed to the Investigating
Officer to move an application before the
Court
concerned
for
permission
to
investigate into the FIR. In pursuance
thereof, an application was moved by the
Investigating Officer before the Court
concerned, which has been allowed by
means of order dated 03.02.2025 and
thereafter,
after
completing
the
investigation, the charge sheet was filed on
05.02.2025 referring all the above facts. It
is further submitted that the aforesaid writ
petition has been withdrawn, which has
been allowed by means of order dated
02.05.2025, without liberty to raise the
aforesaid ground, therefore, the said ground
is not available to the applicants now. Thus,
the submission of learned counsel for the
applicants is misconceived and lacks merits
and this application is liable to be
dismissed. In support of his argument,
learned AGA placed reliance on the
judgment and order dated 05.11.2019
passed by this Court in APPLICATION
U/S 482 No. - 38936 of 2019 (Shavez And
2 Others vs. State of U.P. and Another).

5.
Having
considered
the
submissions advanced by the learned
counsel for the parties, I have perused the
documents placed on record of this
application.
6. It is apparent that N.C.R. No.
0116 of 2024 was lodged on 28.11.2024
under Sections 115(2), 352 & 351(2)
B.N.S., 2023 at Police Station-Katra Bazar,
District-Gonda, in regard to incident, which
took place on 28.11.2024 at 07:30 A.M. As
borne out from the documents on record, a
medical report dated 28.11.2024 was
received, in which an injury in the head
caused by sharp edged weapon was found.
Consequently Section 118(1) B.N.S., 2023
was added, which is cognizable and nonbailable, accordingly it was converted into
FIR, which was registered. The Police is
empowered to investigate the matter in a
cognizable
offence,
thereafter
the
investigation was conducted thereafter.

7.
Section
174
of
Bharatiya
Nagarik Suraksha Sanhita (hereinafter
referred
to
as
"B.N.S.S.")
provides
information about non-cognizable cases
and the investigation of such cases. Subsection (2) of Section 174 of B.N.S.S.
provides that 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.
Sub-Section (4) of Section 174 of B.N.S.S.
provides that 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. Section
174 of B.N.S.S. is extracted here-in-under:

 "174. Information as to noncognizable 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
60 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

8. In view of above, it is apparent
that if a case relates to two or more
offences,
of
which,
one
offence
is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding the fact
that the other offences are non-cognizable.

9. Undisputedly, after receipt of
medical report having an injury in head
caused by sharp edged weapon, Section
118 (1) of B.N.S., 2023 was added,
therefore, this case would fall under
Section 174(4) of the B.N.S.S. as one of the
offences is cognizable. Section 118 of
B.N.S., 2023 being relevant is extracted
hereinunder:-
 "Section
118.
Voluntarily
causing
hurt
or
grievous
hurt
by
dangerous weapons or means.

 (1) Whoever, except in the case
provided for by sub-section (1) of section
122, voluntarily causes hurt by means of
any instrument for shooting, stabbing or
cutting, or any instrument which, used as a
weapon of offence, is likely to cause death,
or by means of fire or any heated
substance, or by means of any poison or
any corrosive substance, or by means of
any explosive substance, or by means of
any substance which it is deleterious to the
human body to inhale, to swallow, or to
receive into the blood, or by means of any
animal,
shall
be
punished
with
imprisonment of either description for a
term which may extend to three years, or
with fine which may extend to twenty
thousand rupees, or with both.

(2) Whoever, except in the case
provided for by sub-section (2) of section
122, voluntarily causes grievous hurt by
any means referred to in sub-section (1),
shall be punished with imprisonment for
life, or with imprisonment of either
description for a term which shall not be
less than one year but which may extend to
ten years, and shall also be liable to fine."

10.
In
view
of
above,
the
contention of the counsel for the applicants
is misconceived. Even otherwise, petitioner
No.1-Vinay had approached this Court
challenging the aforesaid FIR and N.C.R.
on identical grounds on which this
application has been filed and the Division
Bench by means of the order dated
22.01.2025 after recording the submissions
of learned counsel for the applicants
provided that let an appropriate application
be moved by the Investigating Officer
6 All. Vinay & Anr.Vs. State of U.P. & Anr.
61
concerned before the Court concerned
within a week from today and the trial
Court concerned shall pass appropriate
order on the said application within a week
thereafter. With similar prayers, petitioner
No.2-Ved Wati had also approached this
Court by filing Criminal Misc. Writ
Petition No. 820 of 2025 (Ved Wati vs.
State of U.P. And Others), which was
connected with Criminal Misc. Writ
Petition No. 387 of 2025 (Vinay vs. State
of U.P. And 3 Others).

11. In compliance of the aforesaid
order dated 22.01.2025, the Investigating
Officer
moved
an
application
on
29.01.2025 before the Judicial Magistrate,
IInd, Gonda under Section 174(2) B.N.S.S.,
which was allowed by means of order dated
03.02.2025 and thereafter, after completing
the investigation the charge sheet was filed
on 05.02.2025 giving reference to all
aforesaid facts, in brief, in clause 16, which
are extracted here-in-under:-

 "श्रीमान जी ननवेदन है नि मुिदमा उपरोक्त वादी िी
तहरीरी सूचना पर नदनाांि 28.11.24 िो थाना स्थानीय पर
एनसीआर नां0 118/24 धारा 115(2), 352, 351 (2)
बीएनएस पांजीिृत हुआ मजरूब मोनहत िुमार पाठि िे नसर में शापप
इज्ड इन्जरी मेनडिल ररपोर्प में आने िे उपरान्त अनियोग में धारा
118 (1) बीएनएस िो बढोत्तरी िर एनसीआर उपरोक्त िो
मु0अ0सां0 420/24 धारा 115(2), 352, 351(2),
118(1) बीएनएस तरमीम िर पांजीिृत हुआ हस्व आदेश प्र०नन०
महोदय िे नववेचना मुझ उ०नन० िो सुपुदप हुई मुझ उ0नन0 द्वारा
नववेचना ग्रहण िर नववेचनात्मि िायपवाही सम्पानदत निया गया
सांिनलत साक्ष्य से धारा 109 (1) बीएनएस िा पयापत आधार
नमलने िे उपरान्त अनियोग में उक्त धारा िी बढोत्तरी निया गया।
अनियोग में नानमत अनियुक्तगण 1. अजय िुमार; 2. नसद्ध िुमार
उर्प पहलवान पुत्रगण गुरुप्रसाद नमश्रा ननवासी िन्धईपुरवा पूरे सांगम
मौजा बमडेरा थाना िर्रा बाजार जनपद गोण्डा िो नदनाांि
12.01.2025 िो नगरफ्तार हुआ जो वतपमान समय में न्यानयि
अनिरक्षा में नजला िारागार गोण्डा में ननरूद्ध है तथा अनियुक्त नवनय
िुमार व अनियुक्ता वेदवती िी नगरफ्तारी पर मा० उच्च न्यायालय
इलाहाबाद खण्डपीठ लखनऊ द्वारा नगरफ्तारी पर स्थगन आदेश
ननगपत निया गया है। अब तब िी तमामी नववेचना बयान वादी,
ननरीक्षण घर्नास्थल, बयान मजरूब, बयान गवाहान, बयान डाक्र्र
अवलोिन मेनडिल ररपोर्प, अवलोिन सीर्ी स्िैन व एक्स रे ररपोर्प,
व अन्य साक्ष्य सांिनलत साक्ष्य से अनियोग में नानमत अनियुक्तगण
1. नवनय िुमार 2. अजय िुमार, 3. नसद्ध िुमार उर्प पहलवान
पुत्रगण गुरुप्रसाद नमश्रा 4. वेदवती पत्नी गुरूप्रसाद ननवासीगण
िन्धईपुरवा पूरे सांगम मौजा बमडेरा थाना िर्रा बाजार जनपद गोण्डा
िे नवरूद्ध जुमप धारा 115(2), 352, 351(2), 118(1),
109 (1) बीएनएस िा अपराध बाखूबी सानबत है। अतः
अनियुक्तगण 1. नवनय िुमार 2. अजय िुमार, 3. नसद्ध िुमार उर्प
पहलवान, 4. वेदवती उपरोक्त िा चालान अन्तगपत धारा 115
(2), 352, 351 (2), 118(1), 109(1) बीएनएस में
ज़ररये आरोप पत्र मा० न्यायालय प्रेनित निया जा रहा है। श्रीमान जी
से ननवेदन है नि सबूत तलब िर दनण्डत िरने िी िृपा िरें
नववेचना जररये आरोप पत्र समाप्त िी जाती है।"

12. After filing of charge sheet, the
cognizance
has
been
taken
by
the
Magistrate concerned and summoning
order has been issued, which has been
challenged in the present petition. After
issuance of summoning order, the aforesaid
writ petitions have been withdrawn by the
petitioners which has been allowed by
means of the order dated 02.05.2025
without liberty to raise the grounds raised
in the said writ-petitions in case of
challenge to the summoning order and
proceedings, therefore, this Court is of the
view that the ground taken by the
applicants is also not available to the
applicants now. Even otherwise, the
aforesaid ground is not available, as
discussed above, because once the N.C.R.
was converted into an FIR on the basis of
medical report on account of adding of a
cognizable
offence,
the
police
was
empowered to investigate the matter.

13. So far as the the judgment,
relied upon by the counsel for the
applicants, passed by the High Court of
62 INDIAN LAW REPORTS ALLAHABAD SERIES
Bombay at Goa in the case of Mr. Asif
Khan Pathan (Supra) is concerned, the
same is not applicable on the facts and
circumstances of the present case because
in
the
said
case,
some
additional
information was supplied by the informant
subsequently, on the basis of which, the
N.C.R. was converted into FIR, therefore,
the same is distinguishable in the facts and
circumstances of the present case.

14. This Court in the case of
Shavez and Ors. vs. State of U.P. and Ors.,
MANU/UP/4929/2019
has
held
that
conversion of NCR into FIR during
investigation after finding the fact that
accused person has caused serious injuries
to victim and had thereby committed
cognizable offence, is neither illegal nor
impermissible. It has also been held that
merely the fact that new crime number was
assigned and a Chick FIR was also
executed, does not necessarily adversely
affect the proceedings in any vital manner
nor the applicants can claim that they have
prejudiced by the FIR. It has also been held
that this Court does not deem it proper and
cannot be persuaded to have a pre-trial
before the actual trial begins. On a perusal
of FIR and the material collected by the
Investigating Officer on the basis of which
charge sheet has been submitted makes out
a prima facie offence against the accused at
this stage and there appear to be sufficient
ground
for
proceedings
against
the
applicants.

15.
In
view
of
above
and
considering overall facts and circumstances
of this case, this Court does not find any
illegality
or
error
in
the
impugned
proceedings against the applicants which
may call for interference by this Court. The
application has been filed on misconceived
ground and lacks merits.
16. Accordingly, the application is
dismissed.
----------
(2025) 6 ILRA 62
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.06.2025

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2045 of 2025

Kamal Bharbhuja ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Brajesh Nath Rai, Sri Rahul Mishra

Counsel for the Opposite Parties:
Sri Avdhesh Narayan Tiwari, G.A.

Bail -Scheduled Castes & Scheduled Tribes
(Prevention
of
Atrocities)
Act-Criminal
appeal u/s 14-A(2)-initially FIR lodged u/s 103
BNS and other sections against the appellant
and another -with regard to murder of the wife
of the o.p. no.2- but subsequently the case was
converted u/s 108 BNS-abatement to suicide-if
appellant was having illicit relationship with the
deceased -then it cannot be said that due to his
abetment she committed suicide-Bail granted.

Appeal allowed. (E-9)
(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Rahul Mishra, learned
counsel of the appellant, Sri Deepak
Dubey, Advocate holding brief of Avdhesh
Narayan Tiwari, learned counsel for the
opposite party no.2 and Sri Ashutosh
Srivastava, learned A.G.A. for the State.

2. This criminal appeal under
Section 14-A(2) Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)