MD RIZWAN KHAN @ RIZWAN AND ANOTHERversusSTATE OF U.P. AND ANOTHER

   HIGH COURT OF JUDICATURE AT ALLAHABAD

     APPLICATION U/S 528 BNSS No. - 16197 of 2026

Md Rizwan Khan @ Rizwan And Another
                                                  .....Applicant(s)
                             Versus
State of U.P. and Another
                                                     .....Opposite
                                                           Party(s)

Counsel for Applicant(s)          :   Mohammad Zunaid Khan
Counsel for Opposite Party(s)     :   G.A.

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

1. Heard learned counsel for applicants and learned AGA for the
State-respondent.

2. The present application has been preferred challenging
chargesheet dated 28.09.2019 and cognizance/summoning order
dated 18.11.2019 along with entire proceedings of Case No.6095
of 2019 (State Vs. Rizwan and others), arising out of Case Crime
No.154 of 2019, under Section 325, 323, 504 IPC, P.S.
Dildarnagar, District- Ghazipur, pending before learned Chief
Judicial Magistrate, Ghazipur.

3. Learned counsel for applicant argued that applicants have been
falsely implicated in the present case by opposite party no.2 only
to harass them since no offence as alleged, has ever been
committed by them. It has also been argued by learned counsel
for applicants that the instant proceedings initiated against the
applicants only to pressurize them to withdraw the earlier non-
cognizable report preferred by applicants' side. It is also
submitted that there is dispute with regard to drainage channel
between the parties, which is purely civil in nature and the same
has been given criminal color by way of lodging the instant FIR
only to harass the applicants. Learned counsel for applicants
further submitted that there is hardly any evidence against
applicants to corroborate them with the alleged incident. It has
also been argued by learned counsel for applicants that without
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conducting fair investigation, the concerned Investigating Officer
submitted chargesheet against applicants 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.

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 applicants,
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
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                                        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
                                        applicants. 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.

                                        8. On the aforesaid reasons, the present application is devoid of
                                        merit and, hence, the same is dismissed.

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




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