Allahabad High Court

1. Heard learned counsel for the applicant and Sri Mohd. Afzal, learned A.G.A. for the State.

2. Present application under Section 528 B.N.S.S. has been preferred for quashing the entire proceeding of Special Session Trial No. 36 of 2020, arising out of chargesheet dated 11.8.2020 submitted in Case Crime No. 230 of 2019, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short "the Act, 1986), P.S. Sidhari, District Azamgarh, as well as cognizance and summoning order dated 24.8.2020, pending before the Additional Sessions Judge/Special Judge (Gangsters Act), Azamgarh.

3. It is submitted by the learned counsel for the applicant that a false F.I.R. as Case Crime No. 230 of 2019 was lodged against the applicant on 3.9.2019, under Sections 3(1) of the Act, 1986, P.S. Sidhari, District Azamgarh, and the investigating officer wrongly and illegally, submitted chargesheet in this case on 11.8.2020, and the learned trial court took cognizance on 24.8.2020. It is further submitted that charges were framed by the learned trial court on 28.11.2022, wherein he pleaded not guilty and claimed to be tried. Thereafter, the case was fixed for evidence for 22.12.2022, but till date no witness has been examined in the present matter.

4. It is further submitted by the learned counsel for the applicant that no case is made out against the applicant and there is no material to frame charge though it was wrongly framed by the learned trial court vide order dated 28.11.2022. It is also submitted that Rules of U.P. Gangsters and Anti Social Activities (Prevention), Rule, 2021, were not followed by the Authorities at the time of preparation of gang chart. 2 NA528 No. 44116 of 2025

5. Per contra, learned A.G.A. has opposed the prayer and pointed out that charge was framed in this case on 28.11.2022, and the present application was filed after almost three years on 23.9.2025, and latches have not been explained properly by the applicant. It is also submitted by the learned A.G.A. that after framing of charge on 28.11.2022, the case was fixed for evidence and date 22.12.2022 was fixed, but other co-accused persons were not appearing in the trial court and non-bailable warrant of co-accused was issued on 7.8.2024, and till date non-bailable warrant has not been recalled or executed and the case is still fixed for appearance of co-accused due to their non-cooperation.

6. I have heard rival submissions of both the parties and perused the record.

7. In the present matter, the F.I.R. was lodged on 3.9.2019, thereafter, chargesheet was submitted in this case on 11.8.2020, and the learned Magistrate took cognizance vide order dated 24.8.2020. The applicant was summoned to face criminal trial and in pursuance of summoning order, he appeared before the learned trial court and charge was framed by the learned trial court on 28.11.2022. In between, the learned trial court issued non- bailable warrant against co-accused persons who were not appearing and once they appeared before the learned trial court, only then the charge was framed on 28.11.2022.

8. The applicant did not challenge the legality and validity of the F.I.R. dated 3.9.2019, he did not challenge the chargesheet dated 11.8.2020 within time, though he started appearing before the learned trial court on 22.1.2021. The applicant, at any point of time, has not raised any objection at the proper stage that the gang chart was illegal and he cannot be prosecuted on the basis of proceedings of gang chart which was prepared in the month of August, 2019. After six years, from the date of preparation of gang chart, the present application has been filed, wherein it is prayed that proceedings of Special Session Trial No. 36 of 2020 (State vs. Pramod Yadav and Others), under Section 3(1) of the Act, 1986, arising out of Case Crime No. 230 of 2019, P.S. Sidhari, District Azamgarh, be quashed against the present applicant. The latches have not been explained properly by the applicant and it is no where mentioned as to what stopped him in filing the present application at such a belated stage.

9. Section 465 of Cr.P.C. deals with irregularities of the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial. For kind reference, Section 465 Cr.P.C. reads as follows:- "465. Finding or sentence when reversible by reason of error, omission or irregularity.?(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, 3 NA528 No. 44116 of 2025 summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; 2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.? (emphasis supplied)"

10. The Hon'ble Supreme Court in the case of Pradeep S. Wodeyar vs. State of Karnataka, (2021) 19 SCC 62, has dealt with Section 465 of Cr.P.C. In this judgment it is stated that an irregular proceedings at a belated stage may not be challenged, if it is not challenged earlier. The relevant paragraph of the judgment of Pradeep (Supra) is quoted as under: "49.5.The delay in the commencement of trial?The first information report was registered on 9-10-2014 in the first of the batch of cases in the present set of cases. The charge-sheet was submitted on 29-12-2015. Between December 2015 and March 2017, the accused participated in the proceedings. On 30-12-2015, the Special Judge recorded that he had perused the final report and that he was taking cognizance. Summons were directed to be issued to the accused. After cognizance was taken on 30-12-2015, several proceedings took place before the 23rd Additional City Civil and Sessions Judge/Special Judge, Bengaluru City including on 16-1-2016 when some of the accused were admitted to bail. On 17-3- 2017, arguments were addressed before the Special Judge by the Special Public Prosecutor on the charges. The High Court was moved for quashing under Section 482CrPC on 20-3-2017 at that stage. Significantly in the proceedings before the High Court, no ground of challenge was addressed on the basis of the submission (now urged before this Court) that in the absence of a committal order by the Magistrate, the proceedings before the Special Judge suffered for want of jurisdiction. The submission which has been urged before this Court for the first time, purportedly on the ground that a pure question of law is involved, cannot efface the factual position that from the date of the submission of the charge-sheet in 2015 until the filing of the quashing petition on 20-3- 2017, the accused participated in the proceedings before the Special Judge and raised no objection at any time either before the Special Judge or before the High Court. Therefore, the challenge to the irregularity in taking cognizance was not made at the earliest. Though it was made before the conclusion of the trial, the challenge after two years would still amount to a considerable delay, when there were opportunities for it to have been raised earlier.

108.2. The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465CrPC.

108.3. The decision in Gangula Ashok [Gangula Ashok v. State of A.P., (2000) 2 SCC 504 : 2000 SCC (Cri) 488] was distinguished in Rattiram [Rattiram v. State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2)CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2)CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among 4 NA528 No. 44116 of 2025 others.

108.4. In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated.

108.5. It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no ?failure of justice? under Section 465CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465CrPC."

11. In the present matter, the proceedings of trial has been challenged at a belated stage and latches have not been properly explained. Furthermore, the co-accused persons are not appearing before the trial court, the trial court is unable to conclude it within time, therefore, this Court is not inclined to interfere in the present matter and proceedings arising out of impugned chargesheet dated 11.8.2020 as well as cognizance order dated 24.8.2020 and charge dated 28.11.2022, arising out of Case Crime No. 230 of 2019, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Sidhari, District Azamgarh, cannot be quashed at such a belated stage.

12. The present application lacks merit and deserves to be dismissed. Accordingly, the present application under Section 528 of B.N.S.S. is, hereby, dismissed. December 2, 2025 A.P. Pandey (Vivek Kumar Singh,J.)

1. Heard learned counsel for the applicant and Sri Mohd. Afzal, learned A.G.A. for the State.

2. Present application under Section 528 B.N.S.S. has been preferred for quashing the entire proceeding of Special Session Trial No. 36 of 2020, arising out of chargesheet dated 11.8.2020 submitted in Case Crime No. 230 of 2019, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (in short "the Act, 1986), P.S. Sidhari, District Azamgarh, as well as cognizance and summoning order dated 24.8.2020, pending before the Additional Sessions Judge/Special Judge (Gangsters Act), Azamgarh.

3. It is submitted by the learned counsel for the applicant that a false F.I.R. as Case Crime No. 230 of 2019 was lodged against the applicant on 3.9.2019, under Sections 3(1) of the Act, 1986, P.S. Sidhari, District Azamgarh, and the investigating officer wrongly and illegally, submitted chargesheet in this case on 11.8.2020, and the learned trial court took cognizance on 24.8.2020. It is further submitted that charges were framed by the learned trial court on 28.11.2022, wherein he pleaded not guilty and claimed to be tried. Thereafter, the case was fixed for evidence for 22.12.2022, but till date no witness has been examined in the present matter.

4. It is further submitted by the learned counsel for the applicant that no case is made out against the applicant and there is no material to frame charge though it was wrongly framed by the learned trial court vide order dated 28.11.2022. It is also submitted that Rules of U.P. Gangsters and Anti Social Activities (Prevention), Rule, 2021, were not followed by the Authorities at the time of preparation of gang chart. 2 NA528 No. 44116 of 2025

5. Per contra, learned A.G.A. has opposed the prayer and pointed out that charge was framed in this case on 28.11.2022, and the present application was filed after almost three years on 23.9.2025, and latches have not been explained properly by the applicant. It is also submitted by the learned A.G.A. that after framing of charge on 28.11.2022, the case was fixed for evidence and date 22.12.2022 was fixed, but other co-accused persons were not appearing in the trial court and non-bailable warrant of co-accused was issued on 7.8.2024, and till date non-bailable warrant has not been recalled or executed and the case is still fixed for appearance of co-accused due to their non-cooperation.

6. I have heard rival submissions of both the parties and perused the record.

7. In the present matter, the F.I.R. was lodged on 3.9.2019, thereafter, chargesheet was submitted in this case on 11.8.2020, and the learned Magistrate took cognizance vide order dated 24.8.2020. The applicant was summoned to face criminal trial and in pursuance of summoning order, he appeared before the learned trial court and charge was framed by the learned trial court on 28.11.2022. In between, the learned trial court issued non- bailable warrant against co-accused persons who were not appearing and once they appeared before the learned trial court, only then the charge was framed on 28.11.2022.

8. The applicant did not challenge the legality and validity of the F.I.R. dated 3.9.2019, he did not challenge the chargesheet dated 11.8.2020 within time, though he started appearing before the learned trial court on 22.1.2021. The applicant, at any point of time, has not raised any objection at the proper stage that the gang chart was illegal and he cannot be prosecuted on the basis of proceedings of gang chart which was prepared in the month of August, 2019. After six years, from the date of preparation of gang chart, the present application has been filed, wherein it is prayed that proceedings of Special Session Trial No. 36 of 2020 (State vs. Pramod Yadav and Others), under Section 3(1) of the Act, 1986, arising out of Case Crime No. 230 of 2019, P.S. Sidhari, District Azamgarh, be quashed against the present applicant. The latches have not been explained properly by the applicant and it is no where mentioned as to what stopped him in filing the present application at such a belated stage.

9. Section 465 of Cr.P.C. deals with irregularities of the complaint, summons, warrant, proclamation order, judgment or other proceedings before or during trial. For kind reference, Section 465 Cr.P.C. reads as follows:- "465. Finding or sentence when reversible by reason of error, omission or irregularity.?(1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation of revision on account of any error, omission or irregularity in the complaint, 3 NA528 No. 44116 of 2025 summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; 2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.? (emphasis supplied)"

10. The Hon'ble Supreme Court in the case of Pradeep S. Wodeyar vs. State of Karnataka, (2021) 19 SCC 62, has dealt with Section 465 of Cr.P.C. In this judgment it is stated that an irregular proceedings at a belated stage may not be challenged, if it is not challenged earlier. The relevant paragraph of the judgment of Pradeep (Supra) is quoted as under: "49.5.The delay in the commencement of trial?The first information report was registered on 9-10-2014 in the first of the batch of cases in the present set of cases. The charge-sheet was submitted on 29-12-2015. Between December 2015 and March 2017, the accused participated in the proceedings. On 30-12-2015, the Special Judge recorded that he had perused the final report and that he was taking cognizance. Summons were directed to be issued to the accused. After cognizance was taken on 30-12-2015, several proceedings took place before the 23rd Additional City Civil and Sessions Judge/Special Judge, Bengaluru City including on 16-1-2016 when some of the accused were admitted to bail. On 17-3- 2017, arguments were addressed before the Special Judge by the Special Public Prosecutor on the charges. The High Court was moved for quashing under Section 482CrPC on 20-3-2017 at that stage. Significantly in the proceedings before the High Court, no ground of challenge was addressed on the basis of the submission (now urged before this Court) that in the absence of a committal order by the Magistrate, the proceedings before the Special Judge suffered for want of jurisdiction. The submission which has been urged before this Court for the first time, purportedly on the ground that a pure question of law is involved, cannot efface the factual position that from the date of the submission of the charge-sheet in 2015 until the filing of the quashing petition on 20-3- 2017, the accused participated in the proceedings before the Special Judge and raised no objection at any time either before the Special Judge or before the High Court. Therefore, the challenge to the irregularity in taking cognizance was not made at the earliest. Though it was made before the conclusion of the trial, the challenge after two years would still amount to a considerable delay, when there were opportunities for it to have been raised earlier.

108.2. The objective of Section 465 is to prevent the delay in the commencement and completion of trial. Section 465CrPC is applicable to interlocutory orders such as an order taking cognizance and summons order as well. Therefore, even if the order taking cognizance is irregular, it would not vitiate the proceedings in view of Section 465CrPC.

108.3. The decision in Gangula Ashok [Gangula Ashok v. State of A.P., (2000) 2 SCC 504 : 2000 SCC (Cri) 488] was distinguished in Rattiram [Rattiram v. State of M.P., (2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481] based on the stage of trial. This differentiation based on the stage of trial must be read with reference to Section 465(2)CrPC. Section 465(2) does not indicate that it only covers challenges to pre-trial orders after the conclusion of the trial. The cardinal principle that guides Section 465(2)CrPC is that the challenge to an irregular order must be urged at the earliest. While determining if there was a failure of justice, the courts ought to address it with reference to the stage of challenge, the seriousness of the offence and the apparent intention to prolong proceedings, among 4 NA528 No. 44116 of 2025 others.

108.4. In the instant case, the cognizance order was challenged by the appellant two years after cognizance was taken. No reason was given to explain the inordinate delay. Moreover, in view of the diminished role of the committal court under Section 209 of the Code of 1973 as compared to the role of the committal court under the erstwhile Code of 1898, the gradation of irregularity in a cognizance order made in Sections 460 and 461 and the seriousness of the offence, no failure of justice has been demonstrated.

108.5. It is a settled principle of law that cognizance is taken of the offence and not the offender. However, the cognizance order indicates that the Special Judge has perused all the relevant material relating to the case before cognizance was taken. The change in the form of the order would not alter its effect. Therefore, no ?failure of justice? under Section 465CrPC is proved. This irregularity would thus not vitiate the proceedings in view of Section 465CrPC."

11. In the present matter, the proceedings of trial has been challenged at a belated stage and latches have not been properly explained. Furthermore, the co-accused persons are not appearing before the trial court, the trial court is unable to conclude it within time, therefore, this Court is not inclined to interfere in the present matter and proceedings arising out of impugned chargesheet dated 11.8.2020 as well as cognizance order dated 24.8.2020 and charge dated 28.11.2022, arising out of Case Crime No. 230 of 2019, under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Sidhari, District Azamgarh, cannot be quashed at such a belated stage.

12. The present application lacks merit and deserves to be dismissed. Accordingly, the present application under Section 528 of B.N.S.S. is, hereby, dismissed. December 2, 2025 A.P. Pandey (Vivek Kumar Singh,J.)