Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 30060 of 2025 Hemant Kumar Shah State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) : Abhishek Bhushan, Shashank Mishra : G.A., Shubham Dwivedi, Tanmay Chatterjee Court No. - 71 HON'BLE RAJ BEER SINGH, J. 1. Counter affidavit filed by learned counsel for the opposite party no.2 is taken on record.
Legal Reasoning
2. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 and learned A.G.A. for the State. 3. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita ( hereinafter referred to as 'BNSS') has been filed for quashing of entire proceedings, including charge-sheet dated 08.04.2025 as well as cognizance / summoning order dated 07.05.2025, of Case No. 25738 of 2025 (State Vs. Hemant Kumar Shah), arising out of Case Crime No.53 of 2025, under Sections 115(2), 352, 351(2) BNS, P.S.- Chetganj, District- Varanasi, pending in the court of A.C.J.M., Court No.5, Varanasi. 4. It has been submitted by learned counsel for the applicant that applicant is innocent and no prima-facie case is made out against him. It was stated that there is some dispute between applicant and his brother and in that regard some cases are pending. The opposite party no.2 is care taker of the house of brother of applicant. In the alleged incident, the informant has not sustained any injury. It is further submitted that all the offences are non-cognizable and thus the charge-sheet submitted by police has to be treated as a complaint case but appropriate procedure has not been followed. Referring to facts of the matter, it was submitted that impugned proceedings are liable to be quashed. 5. Learned AGA and learned counsel for the opposite party no.2 have opposed the application and submitted that the informant has made clear allegation that applicant has abused and assaulted him with a hockey. He has scuffled with informant and threatened to kill him. It was submitted that 2 NA528 No. 30060 of 2025 version of informant is supported by his medical examination report, wherein contusion swelling and complaint of pain has been shown to the informant. 6. I have considered the rival submissions and perused the record. 7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. In this connection, a reference may also be made to the case of R. Kalyani vs. Janak C. Mehta and Others, 2009 (1) SCC 516, Rupan Deol Bajaj vs. K.P.S. Gill (1995) SCC (Cri) 1059, Rajesh Bajaj vs. State of NCT of Delhi, (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd vs. Biological E Ltd. & Ors, 2000 SCC (Cri) 615. It has been held that if a prima facie case is made out disclosing ingredients of the offence, court should not quash the charge sheet/complaint. It is equally well settled that at this stage questions of fact cannot be examined and a mini trial cannot be held. 8. In the instant matter it appears from record that applicant works as domestic help and that on 05.03.2025 at 10:45 PM while he was talking with mother of the landlord, the applicant-accused, who is uncle of landlord, started abusing him and he came down with a hockey and hit him at his head. When informant resisted, the applicant has scuffled with him and threatened that if he did not run away from there, he would kill him. That version is supported by other witnesses examined during investigation as well as by the medical examination report of informant. The submissions raised by learned counsel for the applicant call for determination on questions of fact, which may adequately be discerned / adjudicated only by the trial court. Even the submissions made on point of law can also be more appropriately gone into by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 528 BNSS. 3 NA528 No. 30060 of 2025 9. So far this argument is concerned that all the offences are non-cognizable offence, it may be stated that though as per Schedule of BNSS these offences have been shown non-cognizable offence but in view of earlier Notification dated 31.07.1989 of State of U.P., the offence under Section 506 IPC was made a cognizable and non-bailable offence, if such offence is committed in State of Uttar Pradesh. Validity of that notification was upheld by the Full Bench of this Court in case of Mata Sevak Upadhyay Vs. State of U.P. 1995 JIC 1168. The law laid down in case of Mata Sevak Upadhyay (supra) was upheld by the Hon'ble Apex Court in case of Aires Rodrigues Vs. Vishwajeet P. Rane and Others; (2017) 11 SCC 62. Thus, it is settled view that offence under Section 506 IPC is a cognizable offence. As stated above, offence under Section 351(2) BNS is reincarnation of Section 506 IPC. In case of Vinay Kumar Pandey Vs. State of U.P. and 4 Others (Criminal Misc. Writ Petition No.13827 of 2024), decided on 03.10.2024, the Division Bench of this Court held as under:- "19. From the above analysis, it is clear that the notification dated 31.7.1989, issued in exercise of power under Section 10 of the Criminal Law (Amendment) Act under the first Schedule of Cr.P.C., 1973, will be deemed to be issued for amending schedule-I of the B.N.S.S. making Section 351(2) B.N.S. (corresponding Section 506 I.P.C.) as cognizable and non bailable and such notification is already saved by Section 531(2) B.N.S.S. which is pari material of Section 484 of Cr.P.C., 1973. Therefore, in the State of U.P., Section 351(2) B.N.S. will remain cognizable and non bailable in view of the notification dated 31.7.1989 which was in force at the time of repealing the Cr.P.C. by B.N.S.S." 10. Thus, from aforesaid it is clear that in view of law laid down in case of Vinay Kumar Pandey (supra), the offence under Section 351(2) BNS has to be considered as a cognizable offence. This Court is bound to follow the said law laid down by the Division Bench. In view of these facts and circumstances, the contention of learned counsel for the applicant that offence under Section 351(2) BNS is non-cognizable offence, can not be accepted. 11. As stated above, in view of material on record, it can not be said that no prima-facie case is made out. Considering entire facts, no case for quashing of impugned proceedings is made out. 12. Accordingly, the application u/s 528 BNSS is dismissed. September 22, 2025 'SP'/- (Raj Beer Singh,J.) Digitally signed by :- SANDEEP PAL High Court of Judicature at Allahabad