Allahabad High Court
RAFAQATversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The court held that under Section 528 CrPC it may only examine the existence of a prima facie case and, finding one, must refuse the application to quash.
Summary
The applicant filed an application under Section 528 of the Code of Criminal Procedure seeking to quash the criminal proceedings (S.T. No. 1142 of 2025) pending against him, alleging that no offence was disclosed and that the prosecution was malicious. The court examined whether, at the stage of a Section 528 application, it could assess the factual disputes and the reliability of evidence. Relying on Supreme Court precedents, the court held that the power under Section 528 is limited to determining the existence of a prima facie case, not adjudicating factual issues. Since a prima facie case was found to exist, the application to quash was refused. Consequently, the application was dismissed as lacking merit.
Issues considered
- Whether a court can quash criminal proceedings under Section 528 CrPC on the ground of alleged malafide prosecution without assessing factual disputes.
- Whether a prima facie case exists against the applicant sufficient to deny the quash petition.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 528
- Criminal Law Amendment Act — s. 7
- Indian Penal Code — s. 147, 148, 149, 153, 323, 332, 333, 336, 341, 353, 427, 504, 506
- Prevention of Damages to Public Property Act — s. 3, 4
Subjects
- Section 528 CrPC
- quash of criminal proceedings
- prima facie case
- malafide prosecution
- High Court of Allahabad
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 37621 of 2026
Rafaqat
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Kamal Kishor Mishra, Vivek Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 75
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. Heard learned counsel for the applicant, Shri Pankaj Saxena, learned
A.G.A.-I 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 quash the entire proceeding of S.T. No. 1142 of 2025 (State
Vs. Ikhlaq Ahmad and others), arising out of Case Crime No. 42 of 2022,
under Sections 147, 148, 149, 153, 323, 336, 332, 333, 353, 427, 504, 506
and 34 I.P.C., read with Section 7 of Criminal Law (Amendment) Act and
Section 3/4 of Prevention of Damages to Public Property Act, Police
Station Bekanganj, District Kanpur Nagar, pending in the court of learned
Additional District and Sessions Judge, Court No. 18, Kanpur Nagar.
Further prayer has been made to quash the order dated 25.06.2026,
whereby discharge application moved on behalf of applicant has been
rejected.
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
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2
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.
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.
(Dr. Gautam Chowdhary,J.)
September 9, 2026
Mustaqeem.
Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad
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