Mohd Faizan Alias Faizan vs State Of U.P. And 3 Others
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Allahabad High Court

Mohd Faizan Alias Faizan vs State Of U.P. And 3 Others on 16 September, 2025

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:164983
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
APPLICATION U/S 528 BNSS No. - 35423 of 2025   
 
   Mohd Faizan Alias Faizan    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of U.P. And 3 Others    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Abhinav Trivedi, Adarsh Kumar   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A.   
 
     
 
 Court No. - 79
 
   
 
 HON'BLE ALOK MATHUR, J.     

1. Heard Sri Adarsh Kumar, learned counsel for the applicant as well as learned A.G.A. for the State of U.P.

2. In the light of proposed order notice to opposite party no. 2 is dispensed with.

3. By means of present application under Section 528 of BNSS, the applicant has prayed for quashing the order dated 03.08.2024 by which charges have been framed against applicant and also order dated 17.04.2025, whereby the application for discharge preferred by the applicant has been rejected.

4. It has been submitted by learned counsel for the applicant that first information report was lodged by mother of the prosecutrix stating that on 20.05.2024, the applicant had enticed her minor daughter in the fields and sexually assaulted her on the pretext that he would marry her, consequently, first information report was lodged on 20.05.2024, registered as Case Crime No. 88 of 2024, under Sections 376 IPC and Section 3/4 of POCSO Act, at Police Station - Shivrajpur, District - Kanpur Nagar. Subsequently, investigation was carried out where prosecutrix has supported the case of the prosecution.

5. The applicant on previous occasion has approached this Court by filing an Application U/S 528 of BNSS No. 4879 of 2025, where summoning order, proceedings, charge sheet and cognizance order were challenged by the applicant. The said application U/S 528 of BNSS was opposed by learned A.G.A. who has stated that all the facts can be appreciated better before the trial Court and accordingly the said application was disposed of with direction to the applicant to approach the trial Court by filing an application for discharge in terms of Section 250(2) of the BNSS and further directed that in case aforesaid application for discharge is filed within two weeks, the trial Court shall consider and decide the same by means of reasoned and speaking order within next two months if there is no legal impediment.

6. Armed with the order of this Court dated 19.02.2025, the applicant approached the trial Court seeking his discharge. The trial Court by means of detailed order dated 17.04.2025, which has been impugned in the present application, has rejected the application for discharge. While rejecting the application for discharge, the trial Court has cone into the merits of the case and also considered the allegations levelled against the applicant.

7. The applicant before the trial Court had stated that there is no material to link the applicant to the said crime inasmuch as there is no electronic evidence available nor was the prosecutrix's mobile phone ceased from which it could be verified that applicant had threatened the prosecutrix with regard to certain photographs and the material which was captured in the phone of the applicant. The applicant has further challenged the Naksha Nazri in the Panchnama and the material on record and location of place of incident is also doubtful as particular crop could not have been sown at that time when the allegation were levelled against the applicant.

8. The trial Court after duly examining the material on record had rejected the application for discharge, stating that prosecutrix herself has supported the allegations during investigation and further has taken into account the fact that charges have also been framed against the applicant and accordingly rejected the application for discharge.

9. Learned counsel for the applicant has submitted that order dated 17.05.2025, is illegal and arbitrary and has vehemently submitted that the said order is also beyond jurisdiction. With regard to defect of jurisdiction it has been submitted that the trial Court cannot consider the application for discharge once charges have been framed. He submits that the trial Court should not have entertained the application for discharge at that particular stage. In support of his submissions he has placed reliance upon the judgment of coordinate Bench of this Court in the case of Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and Another - Criminal Revision No. 2183 of 2021 (decided on 25.10.2021), where the Bench of this Court has relied upon the judgments of Hon'ble Supreme Court, holding that once charges have been framed the issue of discharge becomes redundant as the Court has no jurisdiction to allow the discharge after charges are framed.

10. In the aforesaid circumstances, present writ petition has been filed by the applicant praying that the order framing charges itself deserves to be quashed and the application for discharge of the applicant deserves to be considered afresh and accordingly, has challenged the impugned order dated 17.04.2025, rejecting the application for discharge.

11. Present application is opposed by learned A.G.A. He has submitted that it is the applicant who himself approached this Court on previous occasion by filing application U/S 528 of BNS and it is on the said application filed by the applicant that by means of order dated 19.02.2025, this Court has granted liberty to the applicant to approach the trial Court and press the application for discharge. The applicant armed with the aforesaid order moved discharge application before the trial Court. Perusal of order dated 19.02.2025, would indicate that the aspect of framing of charge was never disclosed to the Court and the Court assuming that in the trial charges have not been framed, granted liberty to the applicant to approach the trial Court and press application for discharge. Even though it was stated that the application was to be considered in case there is no other legal impediment, but still the trial Court in order to comply with the directions of this Court, proceeded to consider and application for discharge on merits and has dismissed the same by means of order dated 17.04.2025.

12. Accordingly, applicant submits that once the applicant himself has infact assailed the order dated 19.02.2025 by filing an application before this Court and the same has been rejected, he has filed present application seeking turn the clock back and also prays for setting aside the order framing charges and direction to re-consider his application for discharge and such prayer is clearly far fetched and cannot be considered.

13. Learned A.G.A. has further submitted that once charges have been framed, then the issue of consideration of application for discharge does not arise and therefore, has prayed for dismissal of the present application.

14. It was also submitted that even though the applicant has prayed for setting aside the order framing charges but, no legal infirmity or lacuna has been pointed out.

15. Heard learned counsel for the parties and perused the record.

16. The facts of the present case are not disputed inasmuch as the applicant is accused in Case Crime No. 88 of 2024, under Sections 376 IPC and Section 3/4 of POCSO Act, at Police Station - Shivrajpur, District - Kanpur Nagar, with allegations that he has sexually assaulted the prosecutrix on 25.05.2024 in the fields after promising to marry her and also threatened her. This Court further finds from the record that the applicant has preferred an application under Section 528 of BNSS, being application No. 4879 of 2025, which was disposed of with liberty to the applicant to move an application for discharge and further direction was issued to the trial Court to consider and decide the application for discharge within the time fixed by this Court.

17. This Court finds that the aspect of framing of charges by means of order dated 03.08.2024, was not mentioned in the order of this Court and in all probability, the order of framing of charges was not even disclosed to this Court. In case this fact would have been disclosed to this Court, then certainly this Court would not have directed the trial Court to consider the application for discharge, after framing of charge.

18. This Court is in agreement with the legal proposition with regard to the fact that once charges have been framed then there is no question for considering the application for discharge and this aspect of the matter has been duly considered by this Court in the case of Ravindra Pratap Shahi @ Pappu Shahi Vs. State of U.P. and Another - Criminal Revision No. 2183 of 2021 (decided on 25.10.2021), where this Court relying upon number of the Apex Court judgments, this Court has held that once charges have been framed, the issue of discharge becomes redundant and the Court has no jurisdiction to allow the application for discharge. Relevant portion of the judgment in the case of Ravindra Pratap Shahi @ Pappu Shahi (supra) is quoted herein below :-

?28. Having noted the law regarding exercise of jurisdiction under Section 227 Cr.P.C., this Court is further required to examine as to whether after charges have been framed the issue relating to discharge of an accused can be considered by court or not. Aforesaid issue is no longer res-integra and stands concluded by the judgement of Supreme Court in Ratilal Bhanji Mithani Vs. State of Maharastra and others (1979) 2 SCC 179, paragraph 28, which has been followed in Bharat Parikh Vs. C.B.I. and another, (2008) 10 SCC 109, paragraph 16, State through C.B.I. New Delhi Vs. Jitendra Kumar Singh, (2014) 11 SCC, 724, paragraph 40, Hardeep Singh Vs. State of Punjab, (2014) 3 SCC, 92, paragraph 31.

29. It is thus apparent that once charges have been framed, the issue of discharge becomes redundant, as Courts have no jurisdiction to allow discharge after charges having been framed. After charges have been framed, Court can either convict or acquit an accused. Admittedly, in the present case, charges have been framed, vide order dated 04.09.2021. Resultantly, this Court now cannot examine the veracity of order dated 02.09.2021, whereby discharge application filed by applicant was rejected.?

19. Accordingly, this Court finds that the trial Court should have only considered this aspect of the matter that charges have been framed and should have rejected the discharge application, but still, it was proper to comply with the directions of this Court dated 19.02.2025, and accordingly considered the application for discharge preferred by the applicant on merits. Even on merits the trial Court did not find any ground to accept the stand of the applicant and rejected the same.

20. This Court finds that it was open for the applicant not to press the application for discharge, clearly understanding the legal proposition that such an application could not have been considered and allowed after framing of charges. It is only after rejection of his application for discharge on merits, he has again approached this Court for not only setting aside the order dated 17.04.2025, but further has sought setting aside of the order of framing of charges, and seeks further direction that his application for discharge may be considered afresh.

21. This Court is of the considered view that firstly, once charges have been framed the trial Court has to proceed and shall conclude only by appreciating the evidence which may result either in acquittal or conviction of the accused. This Court further finds that the legal proposition as stated by the applicant is correct legal interpretation where once charges have been framed, then the issue of discharge becomes redundant and the Court has no jurisdiction to allow the discharge if charges have been framed. Even otherwise, the trial Court did not find any ground for allowing the discharge application when the charges have been framed and we find that the trial Court has not committed any error in rejecting the application for discharge.

22. This Court has also looked into the first information report as well as material adduced by the applicant in the present application and find that all the charges relate to the points in issue which are necessary to be considered for securing the ends of justice in the said trial and do not find any infirmity in the same. No ground was urged in assailing the order framing charges and accordingly, this Court does not find any ground for interference in exercise of power under Section 528 of BNSS.

23. As already discussed, this Court do not find any ground raised by the applicant, fit for interference, with regard to setting aside of the order framing charges. Even otherwise, a person cannot be aggrieved by order of framing of charges as the same is not adverse to the accused as on the basis of charges, evidence is adduced, during trial and it is only after appreciation of evidence and other material which come on record during trial that aspect of conviction or acquittal is considered by the trial Court.

24. It is for the aforesaid reasons, this Court find do not find any ground for interfering with the impugned orders. The writ petition being devoid of merits is dismissed.

25. However, it is made clear that discussion made by the trial Court in its order dated 17.04.2025, shall not influence the trial while deciding the same on the merits of the case.

(Alok Mathur,J.)

September 16, 2025

A. Verma