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Allahabad High Court

MAKHAN LAL AND ANOTHERversusSTATE OF U.P. AND 3 OTHERS

Decided

Holding

The Section 528 application is not maintainable and is dismissed.

Summary

The applicants filed a Section 528 application in the Allahabad High Court seeking to quash a warrant, notice and order dated 02‑12‑2024 issued by the Additional District and Sessions Judge (Special Judge, POCSO Act) in a criminal case involving offences under Sections 376, 366, 363 IPC and Section 17/4 of the POCSO Act. The State opposed, arguing that the Section 528 petition was not maintainable because the order was passed under Section 446 Cr.P.C./Section 491 B.N.S.S., and the applicants had not filed a reply before the trial court. The Court held that the correct remedy was an appeal under Section 449 Cr.P.C./Section 495 B.N.S.S. or filing a reply, and therefore the Section 528 application was barred. Consequently, the application was dismissed.

Issues considered

  • Whether a petition under Section 528 of the B.N.S.S. is maintainable against an order passed under Section 446 of the Cr.P.C. / Section 491 of the B.N.S.S.
  • Whether the applicant should first file a reply before the trial court or pursue an appeal under Section 449 Cr.P.C. / Section 495 B.N.S.S.

Legislation cited

Subjects

  • Section 528
  • maintainability
  • Criminal Procedure Code
  • appeal
  • preliminary objection
  • order quash

Judgment

                                             HIGH COURT OF JUDICATURE AT ALLAHABAD
                                                     APPLICATION U/S 528 BNSS No. - 8322 of 2026

                                    Makhan Lal And Another
                                                                                               .....Applicant(s)
                                                                       Versus

                                    State Of U.P. And 3 Others
                                                                                                   .....Opposite
                                                                                                         Party(s)

                                    Counsel for Applicant(s)                    :   Vishwa Nath Mishra
                                    Counsel for Opposite Party(s)               :   G.A.

                                    Court No. - 80
                                                       HON'BLE VIVEK KUMAR SINGH, J.

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

                                    2. The present application has been filed to quash the impugned warrant
                                    notice order dated 02.12.2024 issued by the learned Additional District
                                    and Sessions Judge/Special Judge, POCSO Act, Court No. 3, Bareilly, in
                                    Criminal Case No. 81 of 2021 (State vs. Dharmendra) arising out of Case
                                    Crime No. 215 of 2015, under Sections 376, 366, 363 of I.P.C. and
                                    Section 17/4 of POCSO Act, P.S. Shahi, District Bareilly.

                                    3. At the very outset, learned A.G.A. raised preliminary objection that the
                                    present application under Section 528 of B.N.S.S. is not maintainable
                                    against the order passed under Section 446 of Cr.P.C./491 of B.N.S.S.
                                    The applicant should have filed a reply before the learned trial court, but
                                    instead of filing his reply, he has wrongly and illegally approached this
                                    Court under Section 528 of B.N.S.S.

                                    4. In view of the objection made by the learned A.G.A., the impugned
                                    order appears to be appealable under Section 449 of Cr.P.C./495 of
                                    B.N.S.S. or the applicants have remedy to file reply before the learned
                                    court concerned, if so advised. The present application is not maintainable
                                    and is liable to be dismissed. Accordingly, it is dismissed.



                                                                                       (Vivek Kumar Singh,J.)
                                    May 6, 2026/A.P. Pandey



Digitally signed by :-
ANAND PRAKASH PANDEY
High Court of Judicature at Allahabad


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