BRAJESH KASAUDHANversusSTATE OF U.P. AND ANOTHER

           HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 16069 of 2026

Brajesh Kasaudhan
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                 .....Opposite
                                                                       Party(s)

Counsel for Applicant(s)      : Sanjeev Kumar Khare, Satya Prakash
                                Singh
Counsel for Opposite Party(s) : G.A.

Court No. - 77
                 HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.
Supplementary affidavit preferred by learned counsel for the applicant in
Court today is taken on record.

2. The instant application under section 528 BNSS has been preferred to
quash the charge-sheet dated 26.03.2023 and cognizance/summoning order
dated 05.02.2024 as well as the entire proceedings of Criminal Case
No.8145 of 2024 (State vs. Bhanu Bind & Others) arising out of Case Crime
No.46 of 2023, under sections 411, 413, 414 IPC, P.S. Dullahpur, District-
Ghazipur, pending in the court of learned ACJ (JD)/ Judicial Magistrate 2nd,
Ghazipur.

3. Learned counsel for applicant argued that applicant has been falsely
implicated in the present case by opposite party no.2 with malicious
intention, since no offence as alleged has ever been committed by him. It has
also been argued by learned counsel for applicant that there is no ingredients
in pursuance to sections 411, 413, 414 IPC, wherein the applicant has been
summoned. Learned counsel for applicant further submitted that there is
hardly any evidence against applicant to corroborate them with the alleged
incident. It has also been argued by learned counsel for applicant that
without conducting fair investigation, the concerned Investigating Officer
submitted chargesheet against applicant whereupon without applying its
judicial mind, learned court concerned took cognizance of offence over the
said chargesheet which is abuse of process of law and as such, same may be
quashed.
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4. Per contra, learned AGA vehemently opposed the prayer as made in the
application by way of submitting that the contentions, which are sought to be
raised on behalf of applicant, would relate to disputed questions of fact, and
would involve appreciation of evidence. It is submitted that at the time of
taking cognizance, only a prima facie case is to be seen and the court
concerned is not expected to hold a mini trial.

5. After hearing the rival submissions extended by learned counsels for the
parties and perusing the records, this Court is of the opinion that at the stage
of taking cognizance/summoning, the Magistrate is only required to record a
prima facie opinion, based on the material on record, and is not expected to
hold a mini trial or to examine the defence of the accused. In judgment
rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v.
State of Bihar and Another; (2002) 1 SCC 241, it was held that the test
which was required to be applied was whether there is "sufficient ground for
proceeding" and not whether there is "sufficient ground for conviction". In
the case of Nupur Talwar v. Central Bureau of Investigation and
Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of
consideration of material at the stage of issuing process being tentative as
distinguished from the actual evidence produced during trial, the test to be
applied at the stage was whether the material placed before the Magistrate
was "sufficient for proceeding against the accused" and not "sufficient to
prove and establish the guilt". At the stage of taking cognizance, a court's
primary focus is to determine if a prima facie case exists, meaning whether
there is sufficient evidence to suggest that an offense has been committed,
and not to delve into the merits of the case or the evidence.

6. The aforementioned legal position has also been considered in a recent
decision of this Court in the judgment dated 6.5.2024 passed in Matters
under Article 227 no. 3254 of 2024 (Kailash and another vs. State of
U.P. and another).

7. From perusal of the material available on record in shape of narrations
made in the FIR, chargesheet, statement recorded during investigation and
looking into the facts of the case, at this stage, it cannot be said that no
offence is made out against applicant. All the submission made at the bar,
relates to the disputed question of fact, which cannot be adjudicated upon by
this Court in exercise of power conferred under Section 528 BNSS.
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                                    8. On the aforesaid reasons, the present application is devoid of merit and,
                                    hence, the same is dismissed.

                                    9. However, it is made clear that this order shall not preclude the applicant
                                    from availing all the other legal remedies which are available to him/her as
                                    per law.

                                    May 6, 2026
                                    Saif
                                                                                       (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad