AKHILESH TIWARI ALIAS AKHILESH KUMAR TIWARI AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         APPLICATION U/S 528 BNSS No. - 26868 of 2025

Akhilesh Tiwari Alias Akhilesh Kumar Tiwari And
Another                                                  .....Applicant(s)
                                Versus
State of U.P. and Another
                                                            .....Opposite
                                                                  Party(s)

Counsel for Applicant(s)     : Mohan Lal Pandey, Sheetala Prasad
                               Pandey
Counsel for Opposite Party(s): Dhananjay Singh, G.A., Satyendra
                               Narayan Singh

Court No. - 83
                    HON'BLE SANJIV KUMAR, J.

1. Heard Sri Mohan Lal Pandey, learned Counsel for the applicants,
Sri Akhilesh Kumar Mishra, learned A.G.A. for the State, Sri
Satyendra Narayan Singh, learned Counsel for the opposite party
no.2 and perused the record.

2. This application under Section 528 of BNSS has been filed for
quashing of the entire proceedings of Case No.994 of 2022 arising
out of Case Crime No.16 of 2022, under Sections 323, 352 and 506
I.P.C., Police Station Sujanganj, District Jaunpur as well as charge-
sheet dated 22.03.2022 and summoning order dated 19.09.2022.

3. The brief facts of the case are that opposite party No.2 lodged an
F.I.R. against the applicants alleging that, on the date of the incident,
the applicants were forcibly erecting an electric pole in his field. When
he objected, they assaulted him. Upon raising an alarm, local persons
intervened and saved opposite party No. 2, whereafter the applicants
fled from the spot, extending threats of dire consequences. On the
basis of this information, an F.I.R. under Sections 323, 352 and 506
I.P.C. was lodged. After investigation, charge-sheet has been filed
before the competent court and the court concerned has taken
cognizance of the offence.

4. Learned Counsel for the applicants submits that the F.I.R. has
been lodged on false and concocted facts. He further submits that
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there is no injury to the opposite party No. 2, which indicates that the
alleged incident is fabricated. He next submits that the impugned
cognizance/summoning order is mechanical and cryptic, having been
passed without application of judicial mind. Therefore, the impugned
cognizance and summoning order, as well as the entire criminal
proceedings, are liable to be quashed.

5. Learned Counsel for the applicants has relied upon the decisions
of a Co-ordinate Bench of this Court in Application under Section 482
Cr.P.C. No. 398 of 2023 (Prabhakant and Another vs. State of U.P.
and Another) and Application under Section 482 Cr.P.C. No. 28310
of 2023 (Sangam Kesarwani and 6 Others vs. State of U.P. and
Another). Paragraph 9 of the decision in Sangam Kesarwani
(supra) reads as under:–

     "9. The same view was again taken by the Hon'ble Apex Court in
     the case of Pepsi Foods Ltd. vs. Special Judicial Magistrate
     reported in (1998) 5 SCC 749. Paragraph-28 of the aforesaid
     judgment reads as follows:-

     "28. Summoning of an accused in a criminal case is a serious
     matter. Criminal law cannot be set into motion as a matter of
     course. it is not that the complainant has to bring only two
     witnesses to support his allegations in the complaint to have the
     criminal law set into motion. The order of the magistrate
     summoning the accused must reflect that he has applied his mind
     to the facts of the case and the law applicable thereto. He has to
     examine the nature of allegations made in the complaint and the
     evidence both oral and documentary in support thereof and would
     that be sufficient for the complainant to succeed in bringing charge
     home to the accused. It is not that the Magistrate is a silent
     spectator at the time of recording of preliminary evidence before
     summoning of the accused. Magistrate has to carefully scrutinise
     the evidence brought on record and may even himself put
     questions to the complainant and his witnesses to elicit answers to
     find out the truthfulness of the allegations or otherwise and then
     examine if any offence is prima facie committed by all or any of the
     accused."

6. Learned Counsel for the opposite party No.2 has opposed the
submissions of learned Counsel for the applicants and submitted that
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the FIR was lodged on correct facts and after collecting evidence, the
charge-sheet was filed. He further submitted that the cognizance and
summoning order have been passed by the learned Magistrate after
applying judicial mind, therefore, the present application has no merit
and is liable to be dismissed.

7. Learned A.G.A. has opposed the submissions of learned Counsel
for the applicants and submitted that summoning order has been
passed lawfully after examining the documents, statements and other
relevant evidence placed before the Court.

8. The first contention on behalf of the learned counsel for the
applicants is that the alleged incident is concocted and fabricated and
no such incident has taken place. He further submitted that the
medical evidence does not corroborate the oral evidence. In this
regard, I have perused the record, which shows that the applicants
have filed copies of the statements of opposite party No. 2 and other
witnesses recorded by the Investigating Officer during the
investigation, in which they have supported the prosecution case.
There is also a medical report of opposite party No. 2, which shows
that he was medically examined and no marks of external injuries
were found. The charge-sheet has been filed under Section 323
I.P.C., which pertains to causing simple hurt.

9. What would be the effect if the injury report does not show any
mark of injury on the person of the injured is a matter to be
considered during trial. In these proceedings, this Court cannot
examine or evaluate the evidence, as it falls within the domain of the
Trial Court. Hence, the submission on behalf of the applicants has no
force.

10. Another and last submission made on behalf of the applicants is
that the impugned cognizance and summoning order is mechanical
and cryptic, without application of judicial mind. In support of this
contention, learned Counsel for the applicants has relied upon the
decisions of the Co-ordinate Bench of this Court in Application U/S
482 Cr.P.C. No. 398 of 2023 (Prabhakant and Another vs. State of
U.P. and Another) and Application U/S 482 Cr.P.C. No. 28310 of
2023 (Sangam Kesarwani and 6 Others vs. State of U.P. and
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                                                                 4


                                    Another). I have gone through both the decisions and it is settled law
                                    that at the stage of cognizance and summoning, the Magistrate must
                                    apply his judicial mind.

                                    11. A perusal of the summoning order dated 19.09.2022 shows that
                                    the Magistrate perused the police papers, including the FIR, charge-
                                    sheet and case diary, and thereafter opined that there is prima facie
                                    evidence against the applicants regarding the commission of the
                                    offences. Accordingly, cognizance was taken and the applicants were
                                    summoned under Sections 323, 352, and 506 I.P.C. A perusal of the
                                    above order shows that the Magistrate has applied his judicial mind
                                    while taking cognizance and summoning the appellants, therefore,
                                    the contention of the learned counsel for the applicants in this regard
                                    has no force.

                                    12. In view of the above discussion, I do not find any merit in this
                                    application and the same is liable to be dismissed.

                                    13. Accordingly, the application is dismissed.

                                    April 20, 2026
                                    Amit
                                                                                        (Sanjiv Kumar,J.)




Digitally signed by :-
AMIT KUMAR
High Court of Judicature at Allahabad