Allahabad High Court
Raj Kumar Patel And 4 Others vs State Of U.P. And Another on 22 September, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:169805
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 30039 of 2025
Raj Kumar Patel And 4 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Arvind Kumar Singh
Counsel for Opposite Party(s)
:
G.A.
Court No. - 71
HON'BLE RAJ BEER SINGH, J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as BNSS) has been filed for quashing of entire proceedings of Case No. 85108 of 2024 (State Vs. Bachau @ Baba and Others), arising out of Case Crime No. 106 of 2023, under Sections - 147, 323, 504, 506 I.P.C., Police Station - Rohaniya, District - Varanasi, pending before the court of Special Chief Judicial Magistrate, Varanasi.
3. It is submitted by learned counsel for the applicants that applicants are innocent and no prima facie case is made out against them. Regarding an incident of 07.04.2023 at about 08:30 PM, opposite party no.2 and others have assaulted the applicants and in that regard applicant no.1 Raj Kumar Patel has lodged a first information report against opposite party no.2 and his family members on 08.04.2023 at 00:20 hours. After that the opposite party no.2 has lodged first information report of this case against applicants on 08.04.2023 at 00:29 hours as a counter blast. In the incident grievous injury has been sustained by injured Surendra Patel, whereas the injuries shown to the opposite party no.2 are simple in nature. In the first information report the opposite party no.2 has not mentioned the time of incident. It was further submitted that offences in question are non-cognizable offence. Learned counsel has referred case of M/s Eicher Tractor and Ltd. and Others Vs. Harihar Singh and Another 2009 (64) ACC 296 and submitted that in view of aforesaid facts the impugned proceedings are liable to be quashed.
4. Learned A.G.A. has opposed the application and submitted that in the alleged incident, both the parties have sustained injuries and both have lodged cases against each other and thus, matter can only be decided by the trial.
5. I have considered the rival submissions and perused the record.
6. In case of M/s Eicher Tractor and Ltd. (supra), the Hon'ble Apex Court has considered several case laws and in Paragraph No.7 has held as under :-
"7. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102)
"(1) Where the allegations made in the first information report or the complaint, even if they are 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. In the instant matter perusal of record shows that in the incident dated 07.04.2023 both the parties have sustained injuries. Applicant no.1 has lodged first information report on 08.04.2023 at 00:20 hours and opposite party no.2 has lodged first information report of the impugned case on 08.04.2023 at 00:29 hours. In medical examination report, six injuries have been shown to the informant. In his statement recorded under Section - 161 Cr.P.C. informant has stated that alleged incident took place on 07.04.2023 at about 08:30 PM. Same time has been shown in the first information report lodged by the applicant no.1. As both the sides have sustained injuries thus, various questions of fact are involved and matter can only be decided by the trial court.
8. The submissions raised by learned counsel for the applicants 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.
9. The argument of learned counsel for applicants, that the offences under Section - 147, 323, 504, 506 I.P.C. are non cognizable, has no substance. It may be stated that as per Schedule of Criminal Procedure Code, Section - 147 I.P.C. is a cognizable offence and if in a case one of the section is cognizable, the entire case has to be treated as a cognizable offence. Further in view of Notification No. 777 / VIII-9 4(2)-87, dated July 31, 1989, which was published in U.P. Gazette, Extra Part-4, Section (Kha), on 02.08.1989, the offence under Section - 506 I.P.C. committed in State of Uttar Pradesh shall be cognizable and non-bailable. The validity of said notification was upheld by Full Bench of this Court in case of Mata Sewak Upadhyay v. State of U.P., 1995 JIC 1168. The said judgment has been upheld by Hon'ble Apex Court in case of Aires Rodrigues Vs. Vishwajeet P. Rane (2017) 11 SCC 62, thus aforesaid authoritative pronouncements leave no manner of doubt that offence under Section 506 IPC if committed in State of Uttar Pradesh is a cognizable offence. In the instant matter, applicants were charge-sheeted for offence under Sections - 147, 323, 504, 506 I.P.C. and as the offence under Section - 147 and 506 I.P.C. are cognizable offence, thus the case is to be treated as cognizable offence and that the learned Magistrate was competent to take cognizable on the charge-sheet under Section - 190(1)(b) Cr.P.C.. Thus, the contention of learned counsel for the applicants that the offences are non cognizable is without any substance.
10. After considering arguments raised by learned counsel for the parties and perusing the first information report and the materials in support of the same, no case for quashing of impugned proceedings is made out. Accordingly, the prayer as made above is hereby refused.
11. However, it is directed that in case applicants surrender before the court concerned within a period of three weeks from today and apply for bail, their bail application shall be considered and decided expeditiously in accordance with settled law. For a period of three weeks from today or till the applicants surrender before the court below, whichever is earlier, no coercive action shall be taken against the applicants in the aforesaid case.
12. The application under Section 528 BNSS is disposed of in above terms.
(Raj Beer Singh,J.)
September 22, 2025
S Rawat
