ANUPAMA AND ANOTHERversusSTATE OF U.P. AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 33494 of 2026

Anupama And Another
                                                            .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Pramod Kumar Mishra, Suneel Kumar
Counsel for Opposite Party(s) : G.A.

Court No. - 74
                      HON'BLE DEEPAK VERMA, J.

1. Supplementary affidavit filed on behalf of the applicants, is taken on
record.

2. Heard learned counsel for the applicants, learned A.G.A. for the State and
perused the record.

3. The present application u/s 528 BNSS has been filed with prayer to quash
the entire proceeding as well as summoning order dated 03.07.2024 passed
by Additional Chief Judicial Magistrate-I, Mirzapur, in Complaint Case No.
0187 of 2024, (Chaniya Devi Vs. Anupama and others), Under Section 406,
420 of I.P.C., Police Station Kotwali Dehat, District Mirzapur and
consequential proceeding of this case.

4. Learned counsel for the applicants submits that learned Magistrate has
issued summon u/s 420 and 406 I.P.C. against the applicants. Learned court
below has passed the cognizance order/summoning order without application
of judicial mind. It is next submitted that proceedings under Sections 420
and 406 I.P.C. cannot run jointly in view of the judgment of Apex Court in
Delhi Race Club (1940) Ltd. vs. The State of Uttar Pradesh & Anr.,
2024 SCC OnLine SC 2248, the Apex Court has held in para 42 and 43,
which are quoted herein below:

"42. When dealing with a private complaint, the law enjoins upon the
magistrate a duty to meticulously examine the contents of the complaint so
as to determine whether the offence of cheating or criminal breach of trust
                                                                                            NA528 No. 33494 of 2026
                                                                    2


                                    as the case may be is made out from the averments made in the complaint.
                                    The magistrate must carefully apply its mind to ascertain whether the
                                    allegations, as stated, genuinely constitute these specific offences. In
                                    contrast, when a case arises from a FIR, this responsibility is of the police ?
                                    to thoroughly ascertain whether the allegations levelled by the informant
                                    indeed falls under the category of cheating or criminal breach of trust.
                                    Unfortunately, it has become a common practice for the police officers to
                                    routinely and mechanically proceed to register an FIR for both the offences
                                    i.e. criminal breach of trust and cheating on a mere allegation of some
                                    dishonesty or fraud, without any proper application of mind.

                                    43. It is high time that the police officers across the country are imparted
                                    proper training in law so as to understand the fine distinction between the
                                    offence of cheating viz-a-viz criminal breach of trust. Both offences are
                                    independent and distinct. The two offences cannot coexist simultaneously in
                                    the same set of facts. They are antithetical to each other. The two provisions
                                    of the IPC (now BNS, 2023) are not twins that they cannot survive without
                                    each other."

                                    5. Considering the argument raised by applicants' counsel and in view of
                                    judgment passed by Hon'ble The Apex Court in the case of Delhi Race Club
                                    (1940) Ltd., cognizance/summoning order dated 03.07.2024 passed by
                                    learned Magistrate is without application of judicial mind.

                                    6. Accordingly, the impugned order dated 03.07.2024 is hereby quashed.

                                    7. The matter is remanded back to learned Magistrate with direction that
                                    learned Magistrate shall pass an appropriate order within eight weeks from
                                    the date of production of certified copy of this order keeping in view the
                                    order of Hon'ble The Apex Court passed in the case of Delhi Race Club
                                    (1940) Ltd. vs. The State of Uttar Pradesh & Anr.

                                    8. With aforesaid direction, the present application under Section 528 BNSS
                                        is accordingly allowed.



                                                                                              (Deepak Verma,J.)
                                    September 8, 2026
                                    Nisha




Digitally signed by :-
nisha kumari
High Court of Judicature at Allahabad