Allahabad High Court
MOHD KALAM AND 4 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- NAND PRABHA SHUKLA
Holding
The application for quash under Section 528 CrPC is declined as the existence of an offence is not conclusively established and the matter involves factual disputes.
Summary
The applicants, Mohd Kalam and four others, were charged under Sections 191(1), 115(2), 352 and 324(4) of the Indian Penal Code in a criminal case filed by the State of U.P. They filed an application under Section 528 of the Criminal Procedure Code seeking to quash the charge‑sheet, the summoning order and the entire proceeding. The High Court examined the record and observed that at this stage it could not be said that no offence was made out against the applicants, as the disputes were factual and not suitable for adjudication in a quash application. Consequently, the Court declined the prayer for quashing, but directed that if the applicants are not on bail they may apply for bail within 45 days and that any discharge application be decided by the trial court within six weeks. For the period of 45 days or until the discharge application is disposed, no coercive measures were to be taken against the applicants. The application was therefore disposed.
Issues considered
- Whether the High Court can quash criminal proceedings under Section 528 CrPC when the existence of an offence is not yet established.
- Whether there is a failure of justice or abuse of process that warrants the exercise of the power to quash.
- Whether the applicants are entitled to directions for bail or discharge pending trial.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 528
- Indian Penal Code — s. 115(2), 191(1), 324(4), 352
Subjects
- quash
- Section 528 CrPC
- abuse of process
- bail
- discharge application
- criminal procedure
- facts in issue
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 37670 of 2026
Mohd Kalam And 4 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Nasrin, Shailendra Kumar Upadhyay
Counsel for Opposite Party(s) : G.A.
Court No. - 80
HON'BLE NAND PRABHA SHUKLA, J.
1. Heard Mr. Shilendra Kumar Upadhyay, learned counsel for the applicants,
learned A.G.A. for the State and perused the record.
2. The present application under Section 528 BNSS has been filed with a
prayer to quash the entire proceeding including the charge-sheet dated
22.06.2026 as well as summoning order dated 24.06.2026 passed by Court
of Judicial Magistrate-II, Court No. 18, Jaunpur in Criminal Case No. 692 of
2026 (State v. Mohd. Kalam and Others) arising out of Case Crime No. 27
of 2026 under Sections 191(1), 115(2), 352, 324(4) of BNS, Police Station-
Tezi Bazar, District -Jaunpur.
3. 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
applicants. All the submissions made at the bar relate to the disputed
questions of fact, which cannot be adjudicated upon by this Court. Only in
cases where the Court finds that there has been failure of justice or abuse of
procedure, this power may be exercised to prevent the abuse of process to
secure the ends of justice.
4. Accordingly, prayer for quashing is declined.
5. In case, the applicants are not on bail, it is directed that if the applicants
appear or surrender through counsel before the Trial Court and makes an
application for bail within 45 days from the date of the order, the same shall
be considered and disposed of expeditiously, after giving opportunity to the
NA528 No. 37670 of 2026
2
other side.
6. Further, it is provided that in case the applicants move an application for
discharge at an appropriate stage through counsel, the same shall be disposed
of by the Trial Court by a reasoned and speaking order in accordance with
law within six weeks thereafter.
7. For a period of 45 days or till the disposal of the discharge application,
whichever is earlier, no coercive measures shall be taken against the
applicants in the aforesaid case.
8. With the aforesaid direction, this application is disposed of.
(Nand Prabha Shukla,J.)
September 23, 2026
Aditya Tripathi
Digitally signed by :-
ADITYA TRIPATHI
High Court of Judicature at Allahabad
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