Nishant Singh And 3 Others vs State Of U.P. And Another

AFR
Neutral Citation No. – 2026:AHC:123352
RESERVED ON 06.04.2026
DELIVERED ON 29.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 48526 of 2025
Nishant Singh and 3 others
…..Applicant(s)
Versus
State of U.P. and another
…..Opposite Party(s)
Counsel for Applicant(s) : Anand Tiwari, Sr. Advocate
Counsel for Opposite Party(s) : Ashok Kumar Singh, G.A.,
Hemendra Pratap Singh
Court No. - 78
HON'BLE NAND PRABHA SHUKLA, J.
1. Heard learned Senior Advocate Sri Vinay Saran, assisted by Sri Anand
Tiwari, appearing for the applicants, Sri Hemendra Pratap Singh and Sri
Ashok Kumar Singh, learned Counsel appearing for the Opposite Party
No. 2, Sri Ratan Singh, learned AGA-I for the State and perused the
record.
2. The present application under section 528 B.N.S.S. has been filed with
a prayer to allow this application and to quash the entire proceedings of
Criminal Complaint Case No. 1328 of 2024 under sections 376, 506
IPC, Police Station Shivpur, District Varanasi, pending before the

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learned Additional Chief Judicial Magistrate, Court Room No.07,
District Varanasi as well as quashing of order dated 22.08.2025 through
which the Applicant Nos.1 and 2 have been summoned under section
376 IPC whereas Applicant Nos. 3 and 4 have been summoned under
section 506 IPC.
3. In the present case, the incident is alleged to have occurred on
27.05.2021. Almost after three years, on 06.01.2024, the Opposite Party
No.2, Alisha Vishwakarma moved an application under section 156(3)
Cr.P.C. for lodging of an FIR. On the same day, the learned A.C.J.M-VII,
Varanasi sought the report from the concerned Police Station and, on the
basis of the said police report, the application was allowed on
09.02.2024 with a direction to the Police Officer concerned to lodge an
FIR and investigate the matter against the applicants.
4. On 03.03.2024, the First Information Report bearing FIR No. 0071 of
2024 under sections 376, 506 IPC was registered at P.S. Shivpur, District
Varuna (Commissionerate of Varanasi) against the applicants, namely,
Nishant Singh, Sitanshu Singh, Babita Singh and Sanjay Singh.
5. After the completion of the investigation by the local police, the Final
Report dated 19.04.2024 was prepared and forwarded to the Superior
Police Official, whereby, the further investigation was ordered on
17.05.2024, to be conducted by the Crime Branch, Commissionerate,
Varanasi. In furtherance of the entrustment, the Crime Branch prepared
the Final Report dated 07.08.2024 and was submitted on 09.12.2024 in
the Court of learned A.C.J.M.-VII, Varanasi.
6. After receipt of the Final Report dated 07.08.2024, the learned
Magistrate issued notice on 09.12.2024 to the first informant/opposite
party no.2/Alisha Vishwakarma.
7. As the Final Report submitted disclosed that no offence appears to
have been committed, the first informant/Opposite Party No.2, Alisha
Vishwakarma being prejudiced filed a Protest Petition on 03.04.2025.
The learned A.C.J.M.-VII, Varanasi after hearing the counsel for the first
informant/opposite party no.2 on the Protest Petition rejected the Final

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Report dated 07.08.2024 and ordered to treat the Protest Petition as a
Complaint Case. Thus, the Complaint Case No. 1328 of 2024 was
registered and the complainant and the witnesses were examined on oath
under sections 200 and 202 Cr.P.C. on 03.04.2025 and 09.04.2025
respectively and thereafter the cognizance/summoning order was issued
against the applicants on 22.08.2025 i.e. the order impugned.
8. The learned Senior Advocate, Mr. Saran has raised the contention that
the order taking cognizance/summoning order dated 22.08.2025 is bad in
law as the Protest Petition was filed by the opposite party no.2/first
informant on 03.04.2025 i.e. after the commencement of Bhartiaya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the ‘BNSS’)
therefore, the provision of section 223 of BNSS will be applicable in the
present case. It has further been submitted that the proviso to sub-section
(1) of section 223 puts an embargo on the power of the Court to take
cognizance by providing that “No cognizance of an offence shall be
taken by the Magistrate without giving the accused an opportunity of
being heard” and, therefore, the entire proceedings along with the
impugned order dated 22.08.2025 is vitiated and needs to be set aside.
9. In his written submission, the learned Senior Advocate has raised the
following arguments:
(i) That the complaint case and the order taking cognizance/summoning
order dated 22.8.2025 is bad in law and is in gross violation of the
mandate of law as it has been lodged after the enactment/enforcement of
new procedural law i.e. B.N.S.S. It has been argued that the learned
Magistrate committed gross illegality by following the procedure under
the repealed procedural law i.e. Criminal Procedure Code, 1973 instead
of following the procedure of B.N.S.S. The alleged incident took place
on 27.05.2021 and, after a delay of about 3 years, the FIR was lodged by
moving an application under section 156(3) Cr.P.C. on 03.03.2024 which
has been registered as Case Crime No. 71 of 2024 at Police Station
Shivpur, District Varanasi. It has been contended that the learned
Magistrate proceeded with the Complaint Case No. 1328 of 2024 under

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the old and repealed Act (Cr.P.C.) instead of following the procedure of
B.N.S.S. The statement of the complainant and the witnesses were
recorded under sections 200 and 202 Cr.P.C. on 09.04.2025 and the
cognizance of the offence took place on 22.8.2025 wherein the
applicants have been summoned to face the trial.
(ii) The main submission of learned counsel for the applicants is that the
Complaint Case was registered on 03.04.2025 i.e. after the
commencement/enactment of B.N.S.S. (01.07.2024) and the procedure
under BNSS has not been followed and the learned Magistrate has
committed gross illegality by adopting the procedure under the Cr.P.C.
therefore, it should be governed by BNSS and not by Cr.P.C. which is
nothing but an abuse of the process of the Court and the applicants have
been deprived of their valuable legal right as provided under section 223
B.N.S.S. for opportunity of hearing before taking cognizance and
summoning the accused.
10. Per contra, learned counsel for the opposite party no. 2 and learned
AGA for the State have vehemently opposed the aforesaid submission on
the ground that by invoking section 531(2)(a) of B.N.S.S. the pending
proceedings on the date of enforcement of BNSS shall continue under
the Criminal Procedure Code and has been saved under the Repeal and
Saving Provision, therefore, there is no illegality in the order impugned.
11. Upon hearing learned counsel for the parties and from perusal of
records, the chronology of events is briefly stated as follows:
SL
No
.
PARTICULARS DATE
1 Incident 27.5.2021
2 Application under section 156(3) Cr.P.C. moved on 06.01.2024
3 Application under section 156(3) Cr.P.C. was allowed on 09.02.2024
4 First Information Report was registered under section
154 Cr.P.C. on

03.03.2024
5 Final Report by the local police under section 173(2)
Cr.P.C. was prepared on
19.04.2024
6 Further investigation by Crime Branch under section
173(8) Cr.P.C. as ordered by ACP Cantt. Varanasi
17.5.2024

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7 BNSS, 2023 came into force on 01.07.2024
8 Final Report was prepared by Crime Branch under
section 173(2) Cr.P.C. on
07.08.2024
9 Final Report dated 07.08.2024 was submitted before the
ACJM-VII, Varanasi on
09.12.2024
10 Notice issued to the first informant/opposite party no.2
09.12.2024
on
11 Protest Petition was filed by the first informant/opposite
03.04.2025
party No.2 on
12 The learned Magistrate ordered for the Protest Petition to
03.04.2025
be treated as a Complaint Case on
13 Examination on oath of Complainant under section 200
09.04.2025
Cr.P.C.
14 Examination on oath of Witnesses under section 202
24.7.2025
Cr.P.C.
15 Cognizance under section 190(1)(a)/summoning order 22.8.2025
12. From the chronology of events as discussed above, it transpires that
the opposite party no.2/Alisha Vishwakarma launched the criminal
proceedings by invoking section 156(3) Cr.P.C. on 06.01.2024. The said
proceedings were initiated prior to 01.07.2024, the commencement of
the B.N.S.S. On the date of enforcement of the B.N.S.S. i.e. 01.07.2024,
the further investigation was in progress and after the completion of the
further investigation, the Final Report was prepared by the Crime Branch
on 07.08.2024. The learned Magistrate issued notice to opposite party
no.2/first informant on 09.12.2024 and in exercise of the power as
mandated by the Hon’ble Apex Court in H.S. Bains vs. State (Union
Territory of Chandigarh) (1980) 4 SCC 631 had exercised the third
“the
option discussed in the said judgement wherein it has been held that
mere fact that the Magistrate had earlier ordered an investigation under section
156(3) and received a report under Section 173 will not have the effect of total of
effacement of the complaint and, therefore, the Magistrate will not be barred from
proceeding under sections 200, 203 and 204. The Magistrate is not bound by the
conclusions arrived at by the police even as he is not bound by the conclusions
arrived at by the complainant in a complaint. A Magistrate who on receipt of a
complaint, orders an investigation under section 156(3) and receives a police report
under section 173(2), may, thereafter, do one of three things : (i) he may decide that
there is no sufficient ground for proceeding further and drop action; (ii) he may take
cognizance of the offence under Section 190(1)(b) on the basis of the police report

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and issue process; this he may do without being bound in any manner by the
conclusion arrived at by the police in their report; (iii) he may take cognizance of the
offence under Section 190(1)(a) on the basis of the original complaint and proceed to
examine upon oath the complainant and his witnesses under section 200.”
13. The Magistrate had thus rejected the Final Report and treated the
Protest Petition as a Complaint Case on 03.04.2025. It is to be noted that
the Protest Petition and its consequential proceedings have not been
challenged as without jurisdiction by the applicants till date and the
applicants have in such view of the matter clearly acquiesced to the
proceedings under the Criminal Procedure Code.
14. At this juncture, it is also relevant to refer section 531(2)(a) of
Bharatiya Nagarik Suraksha Sanhita, 2023 which reads as under:
531. Repeal and savings – (1) The Code of Criminal Procedure, 1973 (2
of 1974) is hereby repealed.
(2) Notwithstanding such repeal -
“(a) if, immediately before the date on which this Sanhita comes into force,
there is any appeal, application, trial, inquiry or investigation pending, then
such appeal, application, trial, inquiry or investigation shall be disposed of,
continued, held or made, as the case may be, in accordance with the provisions
of the Code of Criminal Procedure, 1973 (2 of 1974), as in force immediately
before such commencement (hereinafter referred to as the said Code), as if
this Sanhita had not come into force;”
15. Looking to the Repeal and Savings provision above, the further
investigation was pending at that point of time i.e. on 01.07.2024. In
view of the saving provision, the proceedings will be deemed to have
been continued under the provisions of Criminal Procedure Code. After
completion of the further investigation, the Final Report was submitted
and notice was issued to the first informant/Alisha Vishwakarma on
09.12.2024. Thus, from chronology of events, it emerges that the
“inquiry” was made by the Magistrate under the Criminal Procedure
Code which culminated in the submission of Police Report. The first
informant had filed the Protest Petition which was ordered to be treated

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as a complaint case and after examination of the complainant and the
witnesses on oath the cognizance/summoning order has been passed.
16. Since in the instant matter, the criminal proceedings emanate from
the application moved under section 156(3) Cr.P.C. dated 06.01.2024
before commencement of BNSS, there exists no justification for the
Court concerned to proceed under the provision of B.N.S.S, especially,
in view of the Savings provision incorporated in Section 531(2)(a) of the
BNSS thereof.
17. Moreover, the Hon’ble Apex Court in Parvinder Singh vs.
Enforcement Directorate, 2026 SCC OnLine SC 903 has observed in
Para 28 “Section 531(2)(a) of the BNSS has a laudable objective behind it
which save s the proceedings initiated under the Cr.P.C., prior to the
commencement of the BNSS. It is meant to give a prospective application to
the provisions of the BNSS. In other words, once a proceeding such as an
appeal, application, investigation, inquiry or trial is initiated under the Cr.P.C.,
then the same must meet its logical conclusion under the Cr.P.C. itself.
(emphasis supplied)
18. The object of the said provision is to avoid peace-meal application of
the Cr.P.C. vis-a-vis the BNSS.
19. There is no illegality in the order impugned. No interference is
required.
20. Accordingly, the application under section 528 BNSS is hereby
dismissed.
21. It is hereby clarified that the Court has not expressed any opinion on
the merits of the case.
(Nand Prabha Shukla,J.)
May 29, 2026
Puspendra
Digitally signed by :-
PUSPENDRA NARAYAN SINGH
High Court of Judicature at Allahabad