High Court
Case Details
Neutral Citation No. - 2025:AHC:144323 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 28374 of 2025
Legal Reasoning
test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence. 7. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another). 8. From perusal of the material available on record in shape of narrations made in the FIR, chargesheet and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicant. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 BNSS. 9. Accordingly, the instant application stands dismissed. Order Date :- 13.8.2025 Vivek Kr. Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad
Arguments
Applicant :- Ms. Collen Patrice Lynch Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Kumar Srivastava,Prakash Chandra Srivastava Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Prakash Chandra Srivastava, learned counsel for applicant and learned appearing on behalf of the State. chargesheet dated 22.09.2023 2. The present application has been preferred for seeking quashing of along with cognizance/summoning order dated 25.04.2025 passed by learned Chief Judicial Magistrate, Maharajganj in Case No.8708 of 2025 (State Vs. Colleen Patrice Lynch) and entire proceedings of the said case, arising out of Case Crime No.119 of 2023, under Section 14 of Foreigners Act, 1946 and Section 467 IPC, Police Station Sonauli, District Maharajganj, pending the court of learned Chief Judicial Magistrate, Maharajganj. 3. As per prosecution story, an FIR bearing Case Crime No.119 of 2023 was registered on dated 17.08.2023 against applicant in pursuance of Section 14 of Foreigners Act, 1946 and Section 467 IPC alleging that applicant was attempting to enter into Nepal by way of crossing Indian border using forged Aadhar Card bearing Aadhar No.338781691596 in the name of Vandana Singh, resident of Mahoba, Uttar Pradesh and when she was asked by concerned police, she stated that she is resident of United States of America and she keeps to coming India several time. She also told the concerned police that when her entry was denied in this Country, she came India via Nepal without completing immigration procedure and stayed here and when her Nepal visa was going to expire on 19.08.2023, she tried to enter into Nepal border, she was taken into custody by SSB checkpoint. Upon registration of the FIR, inquiry was initiated which culminated into submission of chargesheet on dated 22.09.2023 under Section 14 of Foreigners Act, 1946 and Section 467 IPC, whereupon learned court concerned took cognizance of offence vide impugned order dated 25.04.2025. 4. Learned counsel for applicant has argued that applicant has falsely been implicated in the present case by opposite party no.2 only to harass her since no offence as alleged, has ever been committed by applicant. It has also been argued by learned counsel for applicant that offence under Section 14 of Foreigners Act, 1946 is not applicable upon the applicant since she entered into India on a valid E-visa which is valid till 2028, therefore, her presence in India may not be deemed illegal specially when the visa was granted to her after due scrutiny of her documents and immigration history by the Ministry of External Affairs and the same has also not been cancelled till date. Learned counsel for applicant has further submitted in sofar as recovery of forged Aadhar Card is concerned, the same has not been actively used by her to obtain any benefit and moreso, Section 467 IPC is also not made out against applicant since the same does not qualify as "valuable security" as per Section 30 of Indian Penal Code. It has also been argued by learned counsel for applicant that without conducting fair investigation, the concerned Investigating Officer submitted chargesheet against applicant whereupon without applying its judicial mind, learned court concerned took cognizance of offence over the said chargesheet which is abuse of process of law and as such, same may be quashed. 5. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be raised on behalf of applicant, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial. 6. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the