The Allahabad High Court has quashed the charge-sheet and the subsequent summoning order issued in a neighbourhood dispute case arising from an allegation of waste-water draining into a neighbour’s premises. Justice Praveen Kumar Giri held that the Magistrate had erroneously passed a cognizance-cum summoning order. The court held that the Magistrate must reconsider cognizance strictly in accordance with BNSS, treating the police report as a complaint and following all mandatory procedural safeguards, including hearing the accused before issuance of process.
The case stemmed from the petition, filed under Section 528 BNSS, challenged the entire proceedings on the ground that the offences under Sections 115(2) and 352 BNS were non-cognizable, yet the Magistrate treated the police report as a complaint and took cognizance under Section 210(1)(b) BNSS rather than under Section 210(1)(a) BNSS. The petitioner claimed that it is an abuse of the process of the Court or Code and liable to be quashed in the interest of justice.
The Court noted that despite the police report disclosing only non-cognizable offences, the Judicial Magistrate mechanically took cognizance under Section 210(1)(b) BNSS, bypassing the statutory mandate under the Explanation to Section 2(1)(h) BNSS, which requires such police reports to be treated as complaints, making the Investigating Officer the complainant. This misclassification, the Court held, invalidated the entire process, as the summoning was done without following the safeguards required in complaint cases, including hearing the accused before summons, examining jurisdiction, and recording procedural satisfaction.
The Court has directed the Magistrate to exercise greater caution in future while passing summoning orders. “The Magistrate shall bear in mind that the act of summoning an accused 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 court added. Further, the court has also directed Magistrates/Presiding Officers to mention their name, designation, and judicial ID below their signatures on every order passed by them
Reiterating that non-cognizable offences are to be tried strictly as summons-cases instituted on complaint, the Court underscored that a Magistrate must adhere to Sections 279, 280, 400 and related BNSS provisions, which apply only when cognizance is taken properly under Section 210(1)(a). Because these procedures were ignored, the Court concluded that the impugned proceedings suffered from abuse of the process of the Court.
Allowing the application, the High Court quashed the charge-sheet and the summoning order.
Apperanaces
Petitioner- Shaheen Bano, Shahnawaz Khan
