Allahabad High Court
VISHAL @ HAPPYversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The court held that a Section 528 application cannot be entertained to quash the proceeding where a prima facie case exists, and factual disputes must be resolved at a later stage.
Summary
The applicant filed an application under Section 528 of the Criminal Procedure Code seeking to quash the cognizance and summoning order dated 13‑11‑2025 in a criminal case involving offences under Sections 191(2), 191(3), 190, 352, 351(3) of the IPC, Section 109 of the B.N.S and Section 30 of the Arms Act. The applicant alleged that no offence was disclosed against him and that the prosecution was instituted with malicious intent to harass. The court observed that the contentions raised pertained to factual disputes and the assessment 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 at this stage and the court is not required to evaluate the reliability of the allegations. Consequently, the prayer to quash was refused and the application was dismissed.
Issues considered
- Whether an application under Section 528 CrPC for quashing a cognizance order can be entertained when the prosecution has only established a prima facie case.
- Whether the court may adjudicate factual disputes and assess the reliability of evidence at the stage of a Section 528 application.
Legislation cited
- Arms Act, 1959 — s. 30
- Code of Criminal Procedure, 1973 — s. 528
- Indian Penal Code — s. 190, 191(2), 191(3), 351(3), 352
Subjects
- Section 528 CrPC
- quash of criminal proceeding
- prima facie case
- malicious prosecution
- criminal procedure
- dismissal
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 38381 of 2026
Vishal @ Happy
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Amit Kumar Singh, Asheesh Kumar
Mishra
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 quash the cognizance/ summoning order dated 13.11.2025 as
well as entire proceeding of Case No. 58328 of 2025, arising out of Case
Crime No. 005 of 2025, under Sections 191(2), 191(3), 190, 352, 351(3),
109 BNS and Section 30 of Arms Act, Police Station Bhagatpur, District
Moradabad.
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. 38381 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.
(Dr. Gautam Chowdhary,J.)
September 11, 2026
Mustaqeem.
Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad
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