# Ajay Yadav v. State of U.P. & Anr

- **Citation:** (2026) 1 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-01-14
- **Case number:** Application U/S 528 BNSS No. 863 of 2026
- **Bench:** Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-yadav-v-state-of-u-p-anr-53970
- **Pages:** 8

## Text

242 INDIAN LAW REPORTS ALLAHABAD SERIES
(2026) 1 ILRA 242
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.01.2026
BEFORE

THE HON'BLE PRAVEEN KUMAR GIRI, J.

Application U/S 528 BNSS No. 863 of 2026

Ajay Yadav ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Issue for Consideration
Matter pertains to challenge under S 528 BNSS seeking to "quash/set aside the Impugned
Cognizance/Summoning order dated 28.05.2025 as well as to quash/set aside the impugned charge sheet
and also to quash/set aside the entire proceedings of the Special Session Trial No. 207/2025" and whether
"this Court finds no illegality or infirmity in the impugned cognizance-cum-summoning order" and the
objections "relate to disputed questions of facts, which cannot be adjudicated at this stage by this Court while
exercising its jurisdiction under S 528 of BNSS."

Headnotes
Bharatiya Nagarik Suraksha Sanhita, 2023 - S 528 - Quashing of cognizance-cum-summoning
order - Scope of interference - Objections relating to delay in FIR, non-mentioning of place of
occurrence and alleged improvement in statement - Held, relate to "disputed questions of facts"
- Not adjudicable at this stage - Criminal Procedure - Cognizance based on police report -
Whether Magistrate required to record reasons while issuing summons - In a case based upon
the police report, the Magistrate is not required to record reasons for issuing the process -
Criminal Proceedings - Delay in lodging FIR - Explanation of delay - there is a satisfactory
explanation for the delay in lodging the FIR, inasmuch as opposite party no. 2 had sustained a
fracture - FIR - non-mentioning of place of occurrence - Effect - an FIR is not expected to be an
encyclopedia of all facts - Cognizance - Power of Magistrate - Addition or subtraction of Sections
- the magistrate cannot exclude or include any Section into the chargesheet after investigation
has been completed. (Para 7,9,10,16,17) (E-7)

Held: In view of the judgment of the Hon'ble Supreme Court in State of Gujarat vs. Afroz Mohammed
Hasanfatta and subsequent judgment in Pradeep S. Wodeyar vs. State of Karnataka, "in a case based upon
the police report, the Magistrate is not required to record his reason on merit or demerit of the case for
summoning the accused" - This Court finds no illegality or infirmity in the impugned cognizance-cumsummoning order - The objections raised by the applicant relate to disputed questions of facts, which cannot
be adjudicated at this stage by this Court while exercising its jurisdiction under S 528 of BNSS - Accordingly,
the present application is dismissed at this stage - Needless to state that the accused-applicant shall have an
opportunity of being heard at the stage of framing of charge under S 250 BNSS (corresponding S. 227 of
Cr.P.C.). (Paras 16 - 19)

Case Law Cited
State of Gujarat vs. Girish Radhakrishnan Varde; (2014) 3 SCC 659; State of Gujarat vs. Afroz Mohammed
Hasanfatta; (2019) 20 Supreme Court Cases 539; Pradeep S. Wodeyar vs. State of Karnataka; (2021)
19 Supreme Court Cases 62.

List of Acts
1 All. Ajay Yadav Vs. State of U.P. & Anr.
243
Bharatiya Nyaya Sanhita, 2023; Bharatiya Nagarik Suraksha Sanhita, 2023; Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989; Bharatiya Sakshya Adhiniyam, 2023; Code of Criminal Procedure,
1973.

List of Keywords
cognizance-cum-summoning order - charge-sheet - delay in lodging the FIR - fracture in right clavicle lateral -
sufficient ground for proceeding - disputed questions of facts - framing of charge - discharge - irregularities
which vitiate proceedings

Case Arising From
ORIGINAL JURISDICTION: Application U/S 528 BNSS No. 863 of 2026 seeking to quash/set aside the
Impugned Cognizance/Summoning order dated 28.05.2025, passed by Special Judge SC/ST Act, Jaunpur as
well as to quash/set aside the impugned charge sheet bearing Charge Sheet No. A113/2025 dated 12.04.2025
and entire proceedings of Special Session Trial No. 207/2025 arising out of Case Crime No. 74/2025, Police
Station-Mungra Badshahpur, District-Jaunpur.

Appearances for Parties
Advs. for the Appellant:
Amit Kumar Tiwari
Advs. for the Respondents:
Shri Manish Kumar Yadav, learned State Law Officer

(Delivered by Hon'ble Praveen Kumar Giri, J.)

1. Heard Amit Kumar Tiwari, learned counsel for the applicant and Shri Manish Kumar
Yadav, learned State Law Officer for the State.

2. Learned counsel for the applicants submits that the present application has been filed under
Section 528 BNSS with the relief which has been mentioned in the prayer clause of the application.
The prayer clause is delineated below:-

"It is therefore most respectfully prayed that this Hon'ble Court may graciously be
pleased to allow this application and quash/set aside the Impugned Cognizance/Summoning order
dated 28.05.2025, passed by Special Judge SC/ST Act, Jaunpur as well as to quash/set aside the
impugned charge sheet bearing Charge Sheet No. A113/2025 dated 12.04.2025 and also to
quash/set aside the entire proceedings of the Special Session Trial No. 207/2025 (State Vs.
Akhilesh and others), under section 115(2), 352, 351(2), 117(2) B.N.S. and Section 3(2)(va) SC/ST
Act, arising out of case crime no. 74/2025 Police Station-Mungra Badshahpur, District-Jaunpur,
against applicant, which is pending in the court of learned Special Judge SC/ST Act, Jaunpur."

3. Learned counsel for the applicant submits that, in respect of the alleged incident dated
13.03.2025, as mentioned in the written information given by opposite party no. 2, an FIR was
registered as Case Crime No. 74 of 2025 against five named accused persons, including the present
applicant, and 10-12 unknown persons under Sections 191(2), 115(2), 352, 351(2) and 74 of the
Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'), and Section 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short 'SC/ST (PA) Act') as amended in
2015 at Police Station - Mungra Badshahpur, District - Jaunpur.
244 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Learned counsel for the applicant further submits that the first information report was
lodged after a delay of six days and no explanation whatsoever has been furnished by the informant
for such inordinate delay. It is further submitted that opposite party no. 2 has alleged that he
sustained several injuries in the incident, pursuant to which an injury report was prepared. The
injury report mentions four visible injuries on the person of opposite party no. 2. In view of the
nature of the injuries, opposite party no. 2 was referred to a radiologist, and an X-ray examination
was conducted on 21.03.2025, wherein a fracture of the right clavicle lateral was reported (right
shoulder region).

5. Learned counsel for the applicant further submits that the FIR does not disclose the place of
occurrence where the alleged incident is stated to have taken place. It is further submitted that
opposite party no. 2, in his statement recorded before the Investigating Officer under Section 180 of
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS'), improved the version of the F.I.R. to
strengthen the prosecution case, thereafter, the charge-sheet was submitted only under Sections
115(2), 352, 351(2) BNS, and Section 3(2)(va) of the SC/ST (PA) Act and Section 117(2) of
BNSS.

6. Learned counsel for the applicant further submits that on the basis of the statement of
opposite party no. 2, Sections 74 and 191(2) of the Bharatiya Nyaya Sanhita, 2023 were deleted by
the Investigating Officer. It is further contended that the learned Special Judge has taken
cognizance in a mechanical and routine manner, without due application of judicial mind, and has
summoned the applicant and other co-accused persons by a cognizance-cum-summoning order
dated 28.05.2025 under Sections 115(2), 352, 351(2) and 117 (2) of BNS, and Section 3(2)(va) of
the SC/ST (PA) Act.

7. Per contra, learned State Law Officer, Sri Manish Kumar Yadav, submits that there is a
satisfactory explanation for the delay in lodging the FIR, inasmuch as opposite party no. 2 had
sustained a fracture in the right clavicle lateral (right shoulder region) and, therefore, the immediate
priority of the injured was to seek medical treatment, thereafter the police was informed about the
alleged incident. It is further submitted that an FIR is not expected to be an encyclopedia of all
facts, and although the place of occurrence was not mentioned in the FIR, the same has been
disclosed in the statement of opposite party no.2 recorded under Section 180 of BNSS that the
alleged incident occurred at the back side of the house.

8. Learned State Law Officer further submits that in the x-ray report, there is a fracture in right
clavicle lateral (right shoulder region) and the same has also been supported by the Radiologist and
the name of the applicant has been mentioned in the statement of other witnesses also. He further
submits that on the basis of the material collected during investigation, the Investigating Officer
submitted charge-sheet though there is mistake of mentioning BNS in respect of Section 117(2) as
BNSS, while the same has been corrected by the Court of cognizance in cognizance-cumsummoning order dated 28.05.2025.

9. Learned State Law Officer submits that in view of the judgment of the Hon'ble Supreme
Court in State of Gujarat vs. Girish Radhakrishnan Varde; (2014) 3 SCC 659 the impugned
order of taking cognizance and issuing summons is strictly in accordance with law as the Court of
1 All. Ajay Yadav Vs. State of U.P. & Anr.
245
cognizance cannot add or subtract, exclude or include any Section mentioned in the charge-sheet at
the time of taking of cognizance as the same is permissible at the time of framing of charge. He has
relied upon paragraph Nos. 13 and 14 of the judgment in State of Gujarat vs. Girish
Radhakrishnan Varde (Supra). The Paragraph No.13 and 14 are delineated below:

"13. But if a case is registered by the police based on the FIR registered at the Police
Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190(a) of the
Cr.P.C. before the magistrate, obviously the magisterial enquiry cannot be held in regard to the
FIR which had been registered as it is the investigating agency of the police which alone is legally
entitled to conduct the investigation and, thereafter, submit the chargesheet unless of course a
complaint before the magistrate is also lodged where the procedure prescribed for complaint cases
would be applicable. In a police case, however after submission of the chargesheet, the matter goes
to the magistrate for forming an opinion as to whether it is a fit case for taking cognizance and
committing the matter for trial in a case which is lodged before the police by way of FIR and the
magistrate cannot exclude or include any section into the chargesheet after investigation has
been completed and chargesheet has been submitted by the police.

14.
The
question,
therefore,
emerges
as
to
whether
the
complainant/informant/prosecution would be precluded from seeking a remedy if the
investigating authorities have failed in their duty by not including all the sections of IPC on
which offence can be held to have been made out in spite of the facts disclosed in the FIR. The
answer obviously has to be in the negative as the prosecution cannot be allowed to suffer
prejudice by ignoring exclusion of the sections which constitute the offence if the investigating
authorities for any reason whatsoever have failed to include all the offence into the chargesheet
based on the FIR on which investigation had been conducted. But then a further question arises as
to whether this lacunae can be allowed to be filled in by the magistrate before whom the matter
comes up for taking cognizance after submission of the chargesheet and as already stated, the
magistrate in a case which is based on a police report cannot add or substract sections at the time
of taking cognizance as the same would be permissible by the trial court only at the time of
framing of charge under section 216, 218 or under section 228 of the Cr.P.C. as the case may be
which means that after submission of the chargesheet it will be open for the prosecution to contend
before the appropriate trial court at the stage of framing of charge to establish that on the given
state of facts the appropriate sections which according to the prosecution should be framed can be
allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit
whether the charge under a particular provision should be framed or not and this is the
appropriate forum in a case based on police report to determine whether the charge can be
framed and a particular section can be added or removed depending upon the material collected
during investigation as also the facts disclosed in the FIR and the chargesheet.

(Emphasis supplied)"

10. Learned State Law Officer, further submits that in view of the judgment of the Hon'ble
Supreme Court in State of Gujarat vs. Afroz Mohammed Hasanfatta; (2019) 20 Supreme
Court Cases 539, in paragraph Nos. 22 and 23 of the judgment, held that the order of issuance of
process without explicitly recording reason for its satisfaction for issue of process does not suffer
from any illegality. The paragraph No. 22 and 23 of judgment is are being delineated below:-
246 INDIAN LAW REPORTS ALLAHABAD SERIES

"22. In summoning the accused, it is not necessary for the Magistrate to examine the
merits and demerits of the case and whether the materials collected is adequate for supporting the
conviction. The court is not required to evaluate the evidence and its merits. The standard to be
adopted for summoning the accused under Section 204 CrPC is not the same at the time of framing
the charge. For issuance of summons under Section 204 CrPC, the expression used is "there is
sufficient ground for proceeding..."; whereas for framing the charges, the expression used in
Sections 240 and 246 IPC is "there is ground for presuming that the accused has committed an
offence..". At the stage of taking cognizance of the offence based upon a police report and for
issuance of summons under Section 204 CrPC, detailed enquiry regarding the merits and demerits
of the case is not required. The fact that after investigation of the case, the police has filed chargesheet along with the materials thereon may be considered as sufficient ground for proceeding for
issuance of summons under Section 204 CrPC.

23. Insofar as taking cognizance based on the police report is concerned, the Magistrate
has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the
police during the investigation. Investigating officer/SHO collects the necessary evidence during
the investigation conducted in compliance with the provisions of the Criminal Procedure Code and
in accordance with the rules of investigation. Evidence and materials so collected are sifted at the
level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases,
opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has
the advantage of the police report along with the materials placed before it by the police. Under
Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police
report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate
directs issuance of process. In case of taking cognizance of an offence based upon the police
report, the Magistrate is not required to record reasons for issuing the process. In cases instituted
on a police report, the Magistrate is only required to pass an order issuing summons to the
accused. Such an order of issuing summons to the accused is based upon satisfaction of the
Magistrate considering the police report and other documents and satisfying himself that there is
sufficient ground for proceeding against the accused. In a case based upon the police report, at the
stage of issuing the summons to the accused, the Magistrate is not required to record any reason.
In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the
charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons
for rejection of the charge-sheet and for not taking it on file."

11. He further submits that the evidence collected during investigation does not, by itself, fall
within the category of proved evidence as contemplated under the Bharatiya Sakshya Adhiniyam,
2023. The same can be proved only when the witnesses are produced before the trial court and their
statements are recorded on oath during examination-in-chief as well as cross-examination, and only
thereafter the documents collected during investigation can be duly proved in accordance with law.

12. It is further submitted that non mentioning of time and place of occurrence are matters of
appreciation of evidence and are required to be considered by the trial court under Section 234
BNSS (corresponding Section 211 of Cr.P.C.) at the stage of framing of charge.
1 All. Ajay Yadav Vs. State of U.P. & Anr.
247

13. Learned State Counsel further submits that as per Section 507 of BNSS (corresponding
Section 461 Cr.P.C.), there is no irregularity which may vitiate the trial proceedings. For ready
reference, Section 507 of BNSS is being quoted below:-

"Section 507 - Irregularities which vitiate proceedings- If any Magistrate, not being
empowered by law in this behalf, does any of the following things, namely:-

(a) attaches and sells property under section 85;

(b) issues a search-warrant for a document, parcel or other things in the custody of a
postal authority;

(c) demands security to keep the peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order under section 152 as to a local nuisance;

(i) prohibits, under section 162, the repetition or continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter XI;

(k) takes cognizance of an offence under clause (c) of sub-section (1) of section 210;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under section 364, on proceedings recorded by another
Magistrate;

(o) decides an appeal;

(p) calls, under section 438, for proceedings; or

(q) revises an order passed under section 491, his proceedings shall be void.

14. Learned State Law Officer lastly submits that in view of Section 250 BNSS
(corresponding Section 227 of Cr.P.C.), the accused shall be afforded an opportunity of hearing at
the stage of framing of charge. For ready reference section 250 BNSS (corresponding Section 227
of Cr.P.C.) is being quoted below:

"Section 250. Discharge - (1) The accused may prefer an application for discharge
within a period of sixty days from the date of commitment of the case under section 232.

(2) If, upon consideration of the record of the case and the documents submitted
therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the
Judge considers that there is not sufficient ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so doing."

15. This Court has gone through the entire submissions advanced on behalf learned counsel
for the parties, decisions relied upon by the learned State Law Officer and perused the record.

16. The Hon'ble Supreme Court in the case of Afroz Mohammed Hasanfatta (Supra) held
that in a case based upon the police report, the Magistrate is not required to record his reason on
merit or demerit of the case for summoning the accused. This judgment has been confirmed by the
248 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Supreme Court its subsequent judgment passed in Pradeep S. Wodeyar vs. State of
Karnataka, (2021) 19 Supreme Court Cases 62. The paragraph No.91 of this judgment is being
quoted below for the sake of convenience :-

"91.While distinguishing the decision in Pepsi Foods Ltd. (supra) on the
ground that it related to taking of cognizance in a complaint case, the court held
since in a case of cognizance based on a police report, the Magistrate has the
advantage of perusing the materials, he is not required to record reasons: State of
Gujarat v. Afroz Mohammed Hasanfatta (2019) 20 SCC 539 : (2020) 3 SCC (Cri.)
876-2

23. Insofar as taking cognizance based on the police report is concerned, the
Magistrate has the advantage of the charge-sheet, statement of witnesses and other
evidence collected by the police during the investigation. Investigating officer/SHO
collects the necessary evidence during the investigation conducted in compliance with
the provisions of the Criminal Procedure Code and in accordance with the rules of
investigation. Evidence and materials so collected are sifted at the level of the
investigating officer and thereafter, charge-sheet was filed. In appropriate cases,
opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The
court thus has the advantage of the police report along with the materials placed
before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has
taken cognizance of an offence upon a police report and the Magistrate is satisfied
that there is sufficient ground for proceeding, the Magistrate directs issuance of
process. In case of taking cognizance of an offence based upon the police report, the
Magistrate is not required to record reasons for issuing the process. In cases
instituted on a police report, the Magistrate is only required to pass an order issuing
summons to the accused. Such an order of issuing summons to the accused is based
upon satisfaction of the Magistrate considering the police report and other documents
and satisfying himself that there is sufficient ground for proceeding against the
accused. In a case based upon the police report, at the stage of issuing the summons
to the accused, the Magistrate is not required to record any reason. In case, if the
charge-sheet is barred by law or where there is lack of jurisdiction or when the
charge-sheet is rejected or not taken on file, then the Magistrate is required to record
his reasons for rejection of the charge-sheet and for not taking it on file."

17. In view of the facts and circumstances of the case as well as law laid down by Hon'ble
Supreme Court, this Court finds no illegality or infirmity in the impugned cognizance-cumsummoning order. The objections raised by the applicant relate to disputed questions of facts,
which cannot be adjudicated at this stage by this Court while exercising its jurisdiction under
Section 528 of BNSS.

18. Accordingly, the present application is dismissed at this stage.

19. Needless to state that the accused-applicant shall have an opportunity of being heard at the
stage of framing of charge under Section 250 BNSS (corresponding Section 227 of Cr.P.C.) .
---------
1 All. Ms. Sapna @ Sapna Choudhary Vs. State of U.P. & Anr.
249
(2026) 1 ILRA 249
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.01.2026

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Application U/S 482 No. 6200 of 2025

Ms. Sapna @ Sapna Choudhary ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration
Matter pertains to rejection of request for grant of NOC for renewal of passport and permission to travel
abroad during pendency of criminal proceedings, on the ground that no documents specifying period of travel
or destination were furnished, and whether such rejection violates Articles 21 and 19 of the Constitution of
India. (Paras 2, 8, 9, 11, 12)

Headnotes
Criminal Procedure Code, 1973 - S. 482 - Inherent powers - Challenge to order rejecting NOC for
passport renewal.
Passport - Renewal / Re-issuance - Pendency of criminal case - No condition in bail order
restraining foreign travel.
Constitution of India - Articles 21 and 19 - Right to travel abroad - Right to livelihood - Scope.
Passports Act, 1967 - S.s 5, 6(2)(f), 7, 10, 22 - Office Memorandums dated 25.08.1993 and
10.10.2019 - Interpretation.
GSR 570(E) - Exemption mechanism - Scope and application. (E-7)

Held: Prima facie, no material exists to suggest that the applicant would be at flight risk or that her
application for re-issuance/ renewal of the passport should not be considered in view of absence any adverse
conduct of the applicant - Merely because no documents have been filed, the request for travel abroad cannot
be denied as has been done in the impugned order - The order impugned dated 30.06.2025 is violative of
Article 21 and Article 19 as well as contrary to the mandate of the Government Orders as well as the Office
Memorandum - Issuance of passport and the conditions to not leave the country without the permission of a
court are two distinct thing - Even in the bail order, no such restrictions has been placed upon the applicant
for travelling abroad - The order impugned dated 30.06.2025 is quashed - Directions are issued to the trial
court to issue an NOC to the applicant for grant of passport which shall be processed for normal period of 10
years - Application allowed. (Paras 8,9,11,12,13,16)

Case Law Cited
Mahesh Kumar Agarwal vs Union of India and another: 2025 INSC 1476; Vangala Kasturi Rangacharyulu v.
Central Bureau of Investigation: 2021 SCC OnLine SC 3549

List of Acts
The Constitution of India; The Code of Criminal Procedure, 1973 (Cr.P.C.); The Passports Act, 1967; The
Indian Penal Code, 1860 (IPC)

List of Keywords