SURENDRA YADAVversusSTATE OF U.P. AND ANOTHER

    HIGH COURT OF JUDICATURE AT ALLAHABAD

      APPLICATION U/S 528 BNSS No. - 33221 of 2026

Surendra Yadav
                                                    .....Applicant(s)
                              Versus
State of U.P. and Another
                                                        .....Opposite
                                                              Party(s)

Counsel for Applicant(s)      : Rajesh Kumar Yadav, Shivam
                                Yadav
Counsel for Opposite Party(s) : G.A.

Court No. - 79
           HON'BLE SAURABH SRIVASTAVA, J.

1. This matter is being taken up in the date fixed category.

2. On previous occasion, it was requested by learned counsel for
applicant for apprising the latest stage of trial, but today when the
matter has been taken up under the category of date fixed matter,
none appeared on his behalf. However, learned AGA for State is
present.

3. The instant application under section 528 BNSS has been
preferred to quash the charge-sheet dated 09.11.2011,
cognizance/summoning order dated 07.12.2011 as well as the
entire proceedings of Criminal Case No.341 of 2011 (State vs.
Surendra Yadav & Others) arising out of Case Crime No.98 of
2011, under sections 420, 406 IPC, P.S. Balua, District-
Chandauli, pending before learned court of Civil Judge (JD)/FTC
Ist, Chandauli.

4. In the memo of affidavit filed in support of instant application,
it has been averred that applicant has been falsely implicated in
the present case by opposite party no.2 only to harass him since
no offence as alleged, has ever been committed by him; there is
hardly any evidence against the applicant to corroborate him with
the alleged incident; it is also averred that without conducting fair
investigation, the concerned Investigating Officer submitted
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charge-sheet against applicant, whereupon without applying its
judicial mind, learned court concerned took cognizance of
offence over the said charge-sheet, which is abuse of process of
law and as such, same may be quashed.

5. 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.

6. After considering the averments made in the affidavit filed in
support of instant application and the submissions extended by
learned AGA as well as 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.

7. 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).

                                        8. 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.

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

                                        September 29, 2026
                                        Saif
                                                                                 (Saurabh Srivastava,J.)




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