RAHUL DILAWAR @ CHHOTUversusSTATE OF U.P. AND ANOTHER

   HIGH COURT OF JUDICATURE AT ALLAHABAD

      APPLICATION U/S 528 BNSS No. - 38301 of 2026

Rahul Dilawar @ Chhotu
                                                   .....Applicant(s)
                             Versus
State of U.P. and Another
                                                      .....Opposite
                                                            Party(s)

Counsel for Applicant(s)              :   Anand Kumar Tiwari
Counsel for Opposite Party(s)         :   G.A.

Court No. - 79
           HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for the applicant and learned A.G.A. for
the State.

2. The instant application under section 528 BNSS has been
preferred to quash the charge-sheet No. 499/2023 dated
21.08.2023 and cognizance/summoning order dated 17.03.2026
passed by learned Chief Judicial Magistrate, Agra as well as
entire proceedings of Case No.4038 of 2026 (State Vs. Sanoj @
Karan and others) arising out of Case Crime No. 405 of 2023,
under Sections 147, 148, 323, 308 I.P.C., Police Station Tajganj,
District Agra, pending in the court of learned Chief Judicial
Magistrate, Agra.

3. 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 all the injured/eye witnesses examined in this case
are friends and interested persons, hence no reliance can be
placed upon the statements given by them. Learned counsel for
applicant further submitted that there is hardly any evidence
against applicant to corroborate them 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
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applying its judicial mind, learned court concerned took
cognizance of offence over the said chargesheet which is abuse of
process of law and as such, same may be quashed.

4. Per contra, learned AGA 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.

5. 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.

6. 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
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                                        and another vs. State of U.P. and another).

                                        7. 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.

                                        8. On the aforesaid reasons, the present application is devoid of
                                        merit and, hence, the same is dismissed.

                                        September 11, 2026
                                        Saif
                                                                                 (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad