Allahabad High Court
KALLU AND 4 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The cognizance order dated 1 July 2024 is set aside and the matter is remitted for reconsideration of cognizance.
Summary
The applicants Kallu and four others filed a Section 528 application seeking to quash the criminal proceedings (Case No. 6059 of 2024) arising from Crime No. 0088/2024 under IPC sections 147, 452, 323, 504 and 506. They contended that the cognizance order dated 1 July 2024 was issued before the charge‑sheet was filed on 9 July 2024, creating a procedural defect. The court examined whether a cognizance order can be validly passed prior to the filing of a charge‑sheet and whether such a defect warrants setting aside the proceeding. Finding the date discrepancy to be a clerical error that could affect the legitimacy of the trial, the court set aside the cognizance order. The matter was remitted to the Judicial Magistrate for reconsideration of cognizance, and the application was partially allowed.
Issues considered
- Whether a cognizance order dated before the filing of a charge‑sheet is legally valid.
- Whether the procedural irregularity justifies quashing the criminal proceeding under Section 528 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 528
- Indian Penal Code — s. 147, 323, 452, 504, 506
Subjects
- cognizance
- charge sheet
- section 528
- procedural defect
- criminal procedure
- quash of proceedings
- IPC offences
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 12221 of 2026
Kallu And 4 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Mrityunjay Pandey, Rakesh Kumar
Mathur, Sanjay Pandey
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard Sri Rakesh Kumar Mathur, learned counsel appearing on behalf of
applicants and learned AGA for State.
2. Present application has been preferred with prayer to quash entire
proceeding of Case no. 6059 of 2024 (State vs. Kallu and others) arising out
of Case Crime no. 0088 of 2024 under sections 147, 452, 323, 504, 506 IPC,
PS- Fatehpur, District Fatehpur as well as charge sheet dated 9.7.2024 and
cognizance/summoning order dated 1.7.2024 passed by learned Judicial
Magistrate, Khaga, Fatehpur.
3. Although notices have been issued against opposite party no. 2 through
learned Chief Judicial Magistrate, Fatehpur and it has been reported by the
office that notices have been served upon opposite party no. 2 in person on
dated 12.4.2026 but when the matter has been taken up today, none appeared
either in person or through counsel at the behest of opposite party no. 2. No
option left but to consider the prayer as made through instant application,
since it is the moral and legal obligation over opposite party no. 2 to attend
the court proceedings wherein the cause of action for registration of Case
Crime no. 0088/2024 has been put under challenge.
4. A precise question of law has been raised by learned counsel for the
applicants that it is apparent from the record that cognizance order dated
1.7.2024 perhaps is issued in some other offences which has been placed in
shape of charge sheet but related to instant matter, since charge sheet has
NA528 No. 12221 of 2026
2
been preferred in Case Crime no. 0088 of 2024 on dated 9.7.2024 itself,
meaning thereby cognizance of offence over the charge sheet has been taken
up by learned concerned court two months before filing of the charge sheet
which might be a clerical error but the same cannot be perpetuated to be
continued in shape of commencement of trial which will certainly create
some doubt over the institution of the matter which has been initiated for
trial for summoning the applicants in pursuance to sections 147, 452, 323,
504 and 506 IPC pending before learned court of Judicial Magistrate, Khaga,
District Fatehpur.
5. Since legal issue in respect of date has only been apprised by learned
counsel appearing before this Court at the behest of applicant, as such order
dated 1.7.2024 through which cognizance of offence has been taken up and
the applicants have been summoned is hereby set aside. Matter is remitted
back to learned Judicial Magistrate, Fatehpur/learned concerned court for
reconsidering over the issue of taking cognizance of offence in respect of
charge sheet dated 9.7.2024, if required.
6. The instant application u/s 528 BNSS stands partly allowed accordingly.
(Saurabh Srivastava,J.)
April 20, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
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