Allahabad High Court

SUNNY DIVAKARversusSTATE OF U.P. AND ANOTHER

Decided: 18 March 2026
Bench: NAND PRABHA SHUKLA

Holding

The application for quash under Section 528 CrPC was declined as the facts do not demonstrate the absence of an offence and the matter is for the trial court to determine.

Summary

The applicant, Sunny Divakar, filed an application under Section 528 of the Criminal Procedure Code seeking to quash the criminal proceedings (Complaint Case No. 1612 of 2022) pending before the Judicial Magistrate, Khaga, which involved offences under Sections 323, 406, 356 and 506 of the IPC. The High Court examined the material and observed that the dispute centered on questions of fact, not on a clear absence of offence, and therefore the power to quash could be exercised only in cases of manifest abuse of process, which was not evident. Consequently, the court declined the prayer to quash the proceedings. However, the court directed that if the applicant seeks discharge, the trial court must consider it within six weeks, and if the applicant is not on bail, a bail application filed within 45 days must be disposed of expeditiously. Until any discharge order is passed, no coercive measures may be taken against the applicant. The application was thus disposed of with these directions.

Issues considered

Whether the High Court can quash criminal proceedings under Section 528 CrPC when the dispute involves factual issues rather than a clear lack of offence.
Whether there is a failure of justice or abuse of process justifying the exercise of the quash power.

Legislation cited

Code of Criminal Procedure, 1973 — s. 528
Indian Penal Code — s. 323, 356, 406, 506

Subjects

Section 528 CrPC
quash of criminal proceedings
private complaint
discharge application
bail
abuse of process
judicial magistrate

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 51026 of 2025

Sunny Divakar
.....Applicant(s)
Versus

State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Akhilesh Pandey
Counsel for Opposite Party(s) : G.A.

Court No. - 76
HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Akhilesh Kumar Pandey, learned counsel for the applicant, 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 proceedings of Complaint Case No. 1612 of 2022
(Vinay Kumar Tiwari v. Sunny Divakar and others) under Sections 323, 406,
356, 506 IPC, Police Station-Khaga, District-Fatehpur pending in the Court
of Civil Judge (J.D.)/Judicial Magistrate, Khaga District-Fatehpur and
summoning order dated 21.03.2023 passed by Civil Judge (J.D.)/Judicial
Magistrate, Khaga, Fatehpur.

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
applicant. 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. However, in the interest of justice as the matter pertains to warrant case
instituted on private complaint, it is provided that in case the applicant
claims discharge at an appropriate stage through counsel, the same shall be
disposed of by the Trial Court in accordance with law after giving
NA528 No. 51026 of 2025
2

opportunity of hearing to both the parties by a reasoned and speaking order
within six weeks from the date of the application, if there is no other legal
impediment.

6. In case, the applicants are not on bail, it is further directed that if the
applicant appears or surrenders 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 other side.

7. Till the disposal of the discharge application, no coercive measures shall
be taken against the applicant in the aforesaid case.

8.With the aforesaid direction, this application is disposed of.

(Nand Prabha Shukla,J.)
March 19, 2026
Aditya Tripathi

Digitally signed by :-
ADITYA TRIPATHI
High Court of Judicature at Allahabad

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