GOVIND MISHRAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 33240 of 2026

Govind Mishra
                                                               .....Applicant(s)
                                    Versus
State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)                   :   Akhilesh Kumar Tiwari
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. Heard learned counsel for applicant, learned AGA for State and Sri Surya
Prakash Sharma, learned counsel for opposite party no.2, who preferred
vakalatnama in Court, which is taken on record.

3. The instant application under section 528 BNSS has been preferred to
quash the charge-sheet dated 25.02.2026 and cognizance/summoning order
dated 22.04.2026 as well as the entire proceedings of Case No.6536 of 2026
(State vs. Govind Mishra) arising out of Case Crime No.26 of 2026, under
sections 115(2), 352, 351(2), 324(4), 121(1) BNS, P.S. Malwan, District-
Fatehpur, pending before learned court of Chief Judicial Magistrate,
Fatehpur.

4. 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 no offence as alleged, has ever been committed by him. It has also
been argued by learned counsel for applicant that no independent public
witness has been examined despite the alleged occurrence having taken
place on a public road near a petrol pump; the prosecution has filed to assign
any specific overt act to the applicant. Learned counsel for applicant further
submitted that there is hardly any evidence against applicant to 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
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of offence over the said chargesheet which is abuse of process of law and as
such, same may be quashed.

5. Per contra, learned AGA and learned counsel for opposite party no.2
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. They further submits that as per the
evidences and statements collected during the course of investigation, there
is crystal clear case of taking cognizance of offence and there is hardly any
infirmity available in the impugned order.

6. 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.

7. 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).
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                                    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