Allahabad High Court
UMESH KUMAR @ UMESH KUMAR JAISWALversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
At the stage of taking cognizance, the court is required only to find a prima facie case; the applicant’s application under Section 528 BNSS is without merit and is dismissed.
Summary
The applicant, Umesh Kumar, filed an application under Section 528 of the BNSS seeking quash of the charge‑sheet and cognizance order in a criminal case (Cr.No.319 of 2017) alleging offences under IPC sections 147, 323, 504 and 506. He contended that he was falsely implicated as a retaliatory measure in a civil dispute over a sale deed and that the investigation was flawed, with no corroborative evidence and that the magistrate had erred by taking cognizance without a fair inquiry. The respondent (State) argued that the issue raised pertained to disputed facts and that at the stage of taking cognizance the court only needs to ascertain a prima facie case, not conduct a mini‑trial. Relying on the Supreme Court’s rulings in S.W. Palanitkar v. State of Bihar and Nupur Talwar v. CBI, the High Court held that the magistrate’s duty is limited to determining whether there is sufficient ground for proceeding, not for conviction. After examining the FIR, charge‑sheet and statements, the court concluded that the material on record does not allow it to declare that no offence exists and that the applicant’s contentions relate to factual disputes beyond the scope of Section 528. Consequently, the application was dismissed as being without merit, though the applicant was not barred from pursuing other legal remedies.
Issues considered
- Whether, at the stage of taking cognizance under Section 528 BNSS, the magistrate must examine only a prima facie case and not the merits of the evidence.
- Whether the applicant’s application for quashing the charge‑sheet can be entertained when the dispute involves factual issues.
- Whether the material on record is sufficient to show that no offence has been made out against the applicant.
Legislation cited
- Bengal Nagpur Special (BNSS) — s. 528
Subjects
- Section 528 BNSS
- cognizance
- prima facie case
- quash of charge‑sheet
- criminal procedure
- magistrate's jurisdiction
- abuse of process
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 21458 of 2026
Umesh Kumar @ Umesh Kumar Jaiswal
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Maha Prasad
Counsel for Opposite Party(s) : G.A.
Court No. - 79
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard Sri Maha Prasad, learned counsel for applicant and opposite
party no.2 in person as well as learned AGA for the State-respondent.
2. The present application has been preferred challenging chargesheet
dated 03.03.2016 and cognizance order dated 29.03.2017 along with
entire proceedings of Criminal Case No.319 of 2017 (State Vs. Umesh
Kumar and others), arising out of Case Crime No.409 of 2015, under
Section 147, 323, 504, 506 IPC, P.S. Phulpur, District Allahabad, pending
before learned Additional Chief Judicial Magistrate, Court No.7,
Allahabad.
3. Learned counsel for applicant argued that applicant has been falsely
implicated in the present case by opposite party no.2 only to harass him
since in pursuance of the same incident, one FIR bearing Case Crime
No.406 of 2015 has also been lodged by applicant against opposite party
no.2 alongwith others, meaning thereby, the present criminal proceedings
is a counter-blast. It has also been argued by learned counsel for applicant
that a civil matter is already persisting between the parties in respect of
cancellation of sale deed and being annoyed with the same, the present
criminal proceedings have been initiated by way of implicating the
applicant. Learned counsel for applicant has further submitted that by
bare perusal of the statement of independent witnesses, no offence as
narrated through the FIR, has ever been committed by applicant and
moreso, in the said incident, applicant had received serious injuries
caused by opposite party no.2. Learned counsel for applicant further
submitted that there is hardly any evidence against applicant to
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2
corroborate him 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.
4. Per contra, opposite party no.2 in person as well as 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
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3
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.
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 the remedies which are available to him as per
law.
(Saurabh Srivastava,J.)
September 14, 2026
Vivek Kr.
Digitally signed by :-
VIVEK KUMAR
High Court of Judicature at Allahabad
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