Allahabad High Court
VINOD KUMARversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The Court held that the application under Section 528 CrPC must be dismissed as it cannot adjudicate factual disputes and only a prima facie case is required.
Summary
The applicant Vinod Kumar filed an application under Section 528 of the Code of Criminal Procedure seeking to set aside the cognizance order dated 11‑09‑2025 and to quash the charge‑sheet dated 29‑05‑2025 in a criminal case under Section 60 of the Excise Act. He alleged that no offence was disclosed and that the prosecution was instituted with malicious intent to harass him. The Court observed that the dispute centered on factual issues and the reliability of evidence, which cannot be decided at the stage of a Section 528 application. Relying on Supreme Court precedents, the Court held that only a prima facie case is required for such applications and the court is not required to assess the merits of the allegations. Consequently, the prayer to quash the proceedings was refused and the application was dismissed, leaving the applicant free to pursue other remedies.
Issues considered
- Whether a Section 528 CrPC application can be entertained to quash a cognizance order and charge‑sheet when the dispute involves factual issues and the prosecution is alleged to be malicious.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 528
- Excise Act — s. 60
Subjects
- Section 528 CrPC
- quash of criminal proceedings
- cognizance order
- charge sheet
- prima facie case
- malicious prosecution
- Excise offence
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 37071 of 2026
Vinod Kumar
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Abdul Majeed, Sufia Saba, Supriya
Counsel for Opposite Party(s) : G.A.
Court No. - 75
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State
and perused the material brought on record.
2. The present application under Section 528 BNSS has been filed with
the prayer to set aside the cognizance order dated 11.09.2025 as well as to
quash the charge sheet dated 29.05.2025 in Criminal Case No. 1315 of
2025 (State Vs. Vinod), arising out of Case Crime No. 0208 of 2025,
under Section 60 of Excise Act, Police Station Meerganj, District
Bareilly, pending in the court of learned Judicial Magistrate, Court No. 1,
Bareilly.
3. The contention of learned counsel for the applicant is that no offence
against the applicant is disclosed and the present prosecution has been
instituted with a malafide intention for the purpose of causing harassment.
He pointed out certain documents and statements in support of his
contention.
4. At this stage, the argument raised by learned counsel for the applicant
involves adjudication of a factual dispute and appraisal of evidence.
5. From the perusal of the material on record and looking into the facts of
the case at this stage it cannot be said that no offence is made out against
the applicant at this stage. All the submissions made at the bar, relate to
the disputed questions of fact, which cannot be adjudicated upon by this
Court under Section 528 BNSS. At this stage only prima facie case is to
be seen in the light of the law laid down by Supreme Court in cases of
R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs.
P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC
(Cr.) 283.
NA528 No. 37071 of 2026
2
6. This Court in exercise of its power under Section 528 BNSS is not
required to assess the correctness of the allegations and reliability of
evidence. Thus, the prayer for quashing is refused.
7. The present application lacks merit and deserves to be dismissed.
8. Dismissed accordingly, leaving it open for the applicant to recourse
other remedy available to him.
(Dr. Gautam Chowdhary,J.)
September 14, 2026
Mustaqeem.
Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad
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