Allahabad High Court
MOHIT AND 2 OTHERSversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- GAUTAM CHOWDHARY
Holding
The court held that under Section 528 CrPC the court is not required to assess the correctness of the allegations or the reliability of evidence, and therefore the application for quashing was refused.
Summary
The applicants filed an application under Section 528 of the Criminal Procedure Code seeking to set aside the cognizance order and quash the charge sheet in a Special Criminal Case involving alleged offences under various sections of the Indian Penal Code and the Protection of Children From Sexual Offences (POCSO) Act. They contended that no offence was disclosed against them and that the prosecution was instituted with malicious intent. The court observed that the dispute centered on factual issues and that, at the stage of a Section 528 application, only a prima facie case is examined, not the veracity of the allegations. Relying on Supreme Court precedents, the court held that it is not required to assess the correctness of the allegations or the reliability of evidence in such applications. Consequently, the prayer for quashing the charge sheet was refused and the application was dismissed.
Issues considered
- Whether an application under Section 528 CrPC for quashing of a charge sheet can be entertained when only a prima facie case exists.
- Whether the court can adjudicate factual disputes and assess the reliability of evidence at the stage of a Section 528 application.
- Whether the prosecution was instituted with malicious intent warranting dismissal of the charge sheet.
Legislation cited
- Indian Penal Code — s. 115(2), 117(2), 126(2), 351(3), 352, 74, 75
- Protection of Children from Sexual Offences Act — s. 7, 8
Subjects
- Section 528 CrPC
- quash petition
- prima facie case
- POCSO Act
- malicious prosecution
- criminal procedure
- charge sheet
- court discretion
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 38469 of 2026
Mohit And 2 Others
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Manoj Kumar Srivastava
Counsel for Opposite Party(s) : G.A.
Court No. - 75
HON'BLE DR. GAUTAM CHOWDHARY, J.
1. Shri Darwari Lal, Advocate, has filed his vakalatnama on behalf of
informant/ opposite party No. 2, which is taken on record.
2. Heard learned counsel for the applicants, learned A.G.A. for the State
as well as learned counsel for the informant and perused the material
brought on record.
3. The present application under Section 528 BNSS has been filed with
the prayer to set aside the cognizance order dated 20.07.2026 as well as to
quash the charge sheet dated 03.05.2026 including the entire proceeding
of Special Criminal Case No. 207 of 2026 (State Vs. Mohit and others),
arising out of Case Crime No. 131 of 2026, under Sections 126(2),
115(2), 74, 75, 352, 351(3), 117(2) B.N.S. and Section 7/8 of Protection
of Children From Sexual Offences Act, Police Station Nawabganj,
District Bareilly, pending in the court of learned Special Judge, POCSO
Act, Bareilly.
4. The contention of learned counsel for the applicants is that no offence
against the applicants 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.
5. At this stage, the argument raised by learned counsel for the applicants
involves adjudication of a factual dispute and appraisal of evidence.
6. 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
NA528 No. 38469 of 2026
2
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.
7. 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.
8. The present application lacks merit and deserves to be dismissed.
9. Dismissed accordingly.
(Dr. Gautam Chowdhary,J.)
September 14, 2026
Mustaqeem.
Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad
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