I.P.C., Police Station Civil Lines, District Aligarh (State of U.P v. Shahid and Others) as well as order dated

1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

2. The present application under Section - 528 B.N.S.S. has been filed with the following prayer :- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the criminal Misc application and quash impugned order dated 23.01.2024 passed by learned Chief Judicial Magistrate, Aligarh in Criminal Case Number 330 of 2020, arising out of Case Crime Number 446 of 2019, under Section - 420, 406, 323, 504, 506 I.P.C., Police Station - Civil Lines, District - Aligarh (State of U.P. Vs. Shahid and Others) as well as order dated 06.03.2025 passed by learned Additional District and Sessions Judge, Court no. 9, Aligarh in Criminal Revision No.37 of 2024 (Shahid Ahmad and Others vs. State of U.P. and Another), pending in the court of Chief Judicial Magistrate, Aligarh District Aligarh."

3. It is submitted by learned counsel for applicants that essentially the dispute between the parties is civil in nature and that the opposite party no.2 / informant has already filed a case under Section - 138 N.I. Act and that matter is pending. It is further submitted that applicants have been summoned for offence under Section - 420, 406, 323, 504, 506 I.P.C. but the offence under Section - 420 and 406 I.P.C. are antithetical to each other and they cannot exist together. In this connection, learned counsel has referred case of Delhi Race Club Vs. State of Uttar Pradesh & Another 2024 LawSuit(SC) 705. It is further submitted that applicant has preferred a criminal revision against order dated

23.01.2024 before the Session court but the revision has also been dismissed vide impugned order dated 06.03.2025. The Revisional court has also failed to consider that the offences under Section - 420 and 406 I.P.C. are are antithetical to each other and they cannot be applied together. Referring to case of Delhi Race Club (supra), it was submitted that both the impugned orders are liable to be quashed.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned orders and that a prima facie case is made out against applicants.

5. I have considered the rival submissions and perused the record.

6. It is well settled that while considering discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. At this stage, a mini trial cannot be held and the Court can shift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against the accused is made out or not. Where material placed on record discloses grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in rejecting application for discharge. The Court is not to hold mini trial by marshalling the evidence at this stage.

7. In case of Delhi Race Club (supra), the Hon'ble Apex Court in paragraph no.42 and 43 has held as under :- "42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

43. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

8. In the instant matter, it is apparent that learned Trial court has failed to consider the fact that offence under Section - 420 and 406 I.P.C. are antithetical to each other and they cannot exist together. Similarly the Revisional court has also failed to consider the law laid down in case of Delhi Race Club (supra). Thus, it is apparent that impugned orders are not in accordance with law and thus, liable to be set aside.

9. In view of aforesaid, the impugned order dated 23.01.2024, passed by the learned Chief Judicial Magistrate, Aligarh as well as the impugned order dated 06.03.2025, passed by the learned Additional District and Sessions Juudge Court No. 9, Aligarh are hereby set aside. The matter is remanded back to the learned Chief Judicial Magistrate, Aligarh to pass an order on the discharge application of applicants afresh considering the law laid down in case of Delhi Race Club (supra), expeditiously preferably within a period of two months from the date of receipt of copy of this order.

10. The Application under Section - 528 BNSS is disposed of in above terms. Order Date :- 1.7.2025 S Rawat SHOBHIT RAWAT High Court of Judicature at Allahabad

1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

2. The present application under Section - 528 B.N.S.S. has been filed with the following prayer :- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the criminal Misc application and quash impugned order dated 23.01.2024 passed by learned Chief Judicial Magistrate, Aligarh in Criminal Case Number 330 of 2020, arising out of Case Crime Number 446 of 2019, under Section - 420, 406, 323, 504, 506 I.P.C., Police Station - Civil Lines, District - Aligarh (State of U.P. Vs. Shahid and Others) as well as order dated 06.03.2025 passed by learned Additional District and Sessions Judge, Court no. 9, Aligarh in Criminal Revision No.37 of 2024 (Shahid Ahmad and Others vs. State of U.P. and Another), pending in the court of Chief Judicial Magistrate, Aligarh District Aligarh."

3. It is submitted by learned counsel for applicants that essentially the dispute between the parties is civil in nature and that the opposite party no.2 / informant has already filed a case under Section - 138 N.I. Act and that matter is pending. It is further submitted that applicants have been summoned for offence under Section - 420, 406, 323, 504, 506 I.P.C. but the offence under Section - 420 and 406 I.P.C. are antithetical to each other and they cannot exist together. In this connection, learned counsel has referred case of Delhi Race Club Vs. State of Uttar Pradesh & Another 2024 LawSuit(SC) 705. It is further submitted that applicant has preferred a criminal revision against order dated

23.01.2024 before the Session court but the revision has also been dismissed vide impugned order dated 06.03.2025. The Revisional court has also failed to consider that the offences under Section - 420 and 406 I.P.C. are are antithetical to each other and they cannot be applied together. Referring to case of Delhi Race Club (supra), it was submitted that both the impugned orders are liable to be quashed.

4. Learned A.G.A. has opposed the application and submitted that there is no illegality or perversity in the impugned orders and that a prima facie case is made out against applicants.

5. I have considered the rival submissions and perused the record.

6. It is well settled that while considering discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. At this stage, a mini trial cannot be held and the Court can shift and weigh the evidence for limited purpose of finding out whether or not a prima facie case against the accused is made out or not. Where material placed on record discloses grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in rejecting application for discharge. The Court is not to hold mini trial by marshalling the evidence at this stage.

7. In case of Delhi Race Club (supra), the Hon'ble Apex Court in paragraph no.42 and 43 has held as under :- "42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

43. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

8. In the instant matter, it is apparent that learned Trial court has failed to consider the fact that offence under Section - 420 and 406 I.P.C. are antithetical to each other and they cannot exist together. Similarly the Revisional court has also failed to consider the law laid down in case of Delhi Race Club (supra). Thus, it is apparent that impugned orders are not in accordance with law and thus, liable to be set aside.

9. In view of aforesaid, the impugned order dated 23.01.2024, passed by the learned Chief Judicial Magistrate, Aligarh as well as the impugned order dated 06.03.2025, passed by the learned Additional District and Sessions Juudge Court No. 9, Aligarh are hereby set aside. The matter is remanded back to the learned Chief Judicial Magistrate, Aligarh to pass an order on the discharge application of applicants afresh considering the law laid down in case of Delhi Race Club (supra), expeditiously preferably within a period of two months from the date of receipt of copy of this order.

10. The Application under Section - 528 BNSS is disposed of in above terms. Order Date :- 1.7.2025 S Rawat SHOBHIT RAWAT High Court of Judicature at Allahabad