Judicial Magistrates must follow procedural requirements for taking cognizance of non-cognizable offenses, treating police reports as complaints and ensuring fair opportunity to the accused.

JUDGMENT :

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 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, District-Shahjahanpur 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 cognizance-cum-summoning order is passed under Section 115 and 352 BNS in a non-cognizable 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