# Pawan Kumar Singh & Ors v. State of U.P. & Anr

- **Citation:** (2025) 12 ILRA 734
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-16
- **Case number:** Application U/S 482. No. 40092 of 2024
- **Bench:** Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-singh-ors-v-state-of-u-p-anr-54836
- **Pages:** 11

## Text

734 INDIAN LAW REPORTS ALLAHABAD SERIES
absence of any contrary provision in the
special Act or any special provision
including the jurisdiction or ap-plicability
of the Code." (vide para 128 in Directorate
Enforcement v. Deepak Mahajon, [1994] 3
SCC 440.

 Hence we have no doubt that a
Special Court under this Act is essentially a
Court of Session and it can take cognizance
of the offence when the case is committed
to it by the magistrate in accordance with
the provisions of the Code. In other words,
a complaint or a charge sheet cannot
straightway laid before the Special Court
under the Act."

17. Learned A.G.A. for the State
could not dispute the aforesaid facts and
circumstances.

18. As District Jhansi has been
notified by the State Government as a
Dacoity Affected Area and Section 392
IPC is classified as a Scheduled offence
under Section 2(b) of the U.P Act No. 31 of
1983, therefore, in the instant matter trial
must proceed as per Section 7 of the U.P.
Act No. 31 of 1983 which empowers the
Special Court to follow the procedure as
provided under Chapter XVIII of the Code
of Criminal Procedure.

19. In view of the aforesaid
discussion, the Court finds that the
impugned orders dated 26.06.2024 and
30.05.2025 have been passed without
jurisdiction and is an abuse of the process
of the Court. Hence, the impugned orders
dated 26.06.2024 and 30.05.2025 passed by
the
learned
Special
Judge
(Dacoity
Affected Area), Jhansi are hereby set aside
and the matter is remitted back with a
direction to the Court concerned to proceed
with trial afresh, in accordance with the
procedure as discussed above, after giving
opportunity of hearing to both the parties,
expeditiously
without
granting
any
unnecessary or long adjournments to either
of the parties, if there is no other legal
impediment.

20. With the aforesaid direction,
the application u/s 528 B.N.S.S. is allowed.
----------
(2025) 12 ILRA 734
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2025

BEFORE

THE HON'BLE PRAVEEN KUMAR GIRI, J.

Application U/S 482. No. 40092 of 2024

Pawan Kumar Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for Consideration
Whether proceedings of Criminal Case No. 157
of 2024 emanating from Charge Sheet dated
29.01.2024 arising out of Case Crime No. 369 of
2023, PSKotwali Chunar, Mirzapur, for the
offences under Section 354A, 504 & 506 Indian
Penal Code pending before the Court of Civil
Judge, (Junior Division) FTC/offences against
woman, Mirzapur are liable to be quashed.

Head Notes
The Code of Criminal Procedure,1973Sections 216,218,221, 227, 228, 232, 239,
240 & 482; The Indian Evidence Act,
1872-Section 3- The accused has a
remedy to move a discharge application
before
the
concerned
Magistrate
or
Sessions Court. The Court, after providing
an opportunity of hearing, may either
discharge the accused or frame charges
against the accused as per the provisions
of law mentioned in the Code of Criminal
Procedure, 1973 or the Bharatiya Nagarik
Suraksha
Sanhita,
2023-
Application
dismissed.(E-15)
12 All. Pawan Kumar Singh & Ors. Vs. State of U.P. & Anr.
735
Held- Court is not inclined to grant any relief to
the applicant as prayed in the prayer clause as
the issue has already been settled by the
Hon'ble Supreme Court in the case of State of
Gujarat v. Girish Radhakrishnan Varde; (2014) 3
SCC 659.
(Para 9, 10 & 14)
Case Law Cited
State of Gujarat v. Girish Radhakrishnan Varde;
(2014) 3 SCC 659; Arnesh Kumar vs. State of
Bihar; 2014 (8) SCC 273 and Satyendra Kumar
Antil vs. Central Bureau of Investigation and
Another; 2021 (10) SCC 773;

List of Acts
The Code of Criminal Procedure,1973; The
Indian Evidence Act, 1872

List of Keywords
Remedy to move a discharge application; Court
after providing an opportunity ; may either
discharge the accused or frame charges

Case Arising From
Summoning order dated 28.05.2024 passed in
Criminal Case No. 157 of 2024 for the offences
under Section 354A, 504 and 506 Indian Penal
Code pending before the Court of Civil Judge,
Junior Division FTC/offences against woman,
Mirzapur and also quash the further proceedings
Criminal Case No. 157 of 2024 emanating from
Charge Sheet dated 29.01.2024 arising out of
Case Crime No. 369 of 2023, PSKotwali Chunar,
Mirzapur, for the offences under Section 354A,
504 and 506 Indian Penal Code pending before
the Court of Civil Judge, (Junior Division)
FTC/offences against woman, Mirzapur

Appearances for Parties
Counsel for Applicant(s) : Abhishek Bhushan,
Dinesh Singh, Sr. Advocate
Counsel for Opposite Party(s) : Anand Kumar,
G.A., Pankaj Kumar, Shyam Singh

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

1. Heard Shri R.R. Shukla, Advocate
holding brief of Shri Dinesh Singh, learned
counsel for the applicants and Shri Pankaj
Kumar Tripathi, learned AGA for the State.
2.
Learned
counsel
for
the
applicants submits that he has filed the
instant application under Section 482
Cr.P.C. with the relief which has been
mentioned in the prayer clause of the
application.

3. The relief which has been
mentioned in the application is delineated
below:-

 "It is, therefore, most respectfully
prayed that this Hon'ble Court may kindly
be pleased to allow the present criminal
application and quash the summoning
order
dated
28.05.2024
passed
in
Criminal Case No. 157 of 2024 for the
offences under Section 354A, 504 and
506 Indian Penal Code pending before
the Court of Civil Judge, Junior Division
FTC/offences against woman, Mirzapur
and also quash the further proceedings
Criminal
Case
No.
157
of
2024
emanating from Charge Sheet dated
29.01.2024 arising out of Case Crime No.
369 of 2023, PS- Kotwali Chunar,
Mirzapur, for the offences under Section
354A, 504 and 506 Indian Penal Code
pending before the Court of Civil Judge,
(Junior Division) FTC/offences against
woman,
Mirzapur,
otherwise
the
applicants shall suffer irreparable loss
and hardship."

4.
Learned
counsel
for
the
applicants submits that opposite party No.2
lodged the First Information Report (F.I.R.)
with allegations of molestation and making
indecent comments against her, who is a
lady. On the facts so alleged in the First
Information
Report,
the
F.I.R.
was
registered as Case Crime No. 369 of 2023,
Police Station Kotwali Chunar, Mirzapur,
under Section 354A, 504 and 506 of the
Indian Penal Code.
736 INDIAN LAW REPORTS ALLAHABAD SERIES
5.
Learned
counsel
for
the
applicants further submits that the victim,
i.e. opposite party No.2, in her statements
recorded under Sections 161 and deposition
recorded under Section 164 Cr.P.C., has
not supported the version of the F.I.R.
However, after investigation, the police has
submitted charge-sheet under Sections
354A, 504 and 506 I.P.C. against the
applicants.
Learned
counsel
for
the
applicants further submits that the present
case is a counter blast, as disciplinary
proceedings had earlier been initiated
against the opposite party No.2 (Victim) by
the department.

6. Per contra, learned A.G.A.
submits
that
the
F.I.R.
is
not
an
encyclopedia. Therefore, the victim, i.e.
opposite party No.2, has disclosed other
facts which occurred with her at a later
stage and the charge-sheet has been
submitted in accordance with law and the
learned Judicial Magistrate has taken
cognizance on the sections mentioned in
the charge-sheet.

7. On perusal of the record, it
transpires that the learned Magistrate has
taken cognizance on the charge-sheet as per
law and if no offence is made out under the
sections mentioned in the charge-sheet, the
same can be examined at a later stage, as
remedy is available to the accused under
Section 239 Cr.P.C. (corresponding Section
262 B.N.S.S.) at the stage of framing of
charges, where the accused shall be
provided an opportunity of hearing. Thus,
quashing/setting aside the cognizance order
amounts to discharge at an early stage and
adding
or
subtracting,
excluding
or
including any section also amounts to
alteration
of
charge
for
which
an
appropriate
stage
is
provided
under
Sections 216, 218 and 221 Cr.P.C.
(corresponding Sections 239, 241 and 244
B.N.S.S.) for alteration of charge, separate
charge for distinct offence and cases where
it is doubtful as to what offence has been
committed. The provisions mentioned in
Section
216,
218,
221
Cr.P.C.
(corresponding Section 239, 241, 244
BNSS) delineated below:

 "Section 216 Cr.P.C., Court may
alter charge- (1) Any Court may alter or
add to any charge at any time before
judgment is pronounced.

 (2) Every such alteration or
addition shall be read and explained to the
accused.

 (3) If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the Court may, in
its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

 (4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a
new trial or adjourn the trial for such
period as may be necessary.

 (5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
12 All. Pawan Kumar Singh & Ors. Vs. State of U.P. & Anr.
737
which the altered or added charge is
founded.

 Section 218 Cr.P.C., Separate
charges for distinct offences- (1) For every
distinct offence of which any person is
accused there shall be a separate charge
and every such charge shall be tried
separately.

 Provided that where the accused
person, by an application in writing, so
desires and the Magistrate is of opinion
that such person is not likely to be
prejudiced thereby, the Magistrate may try
together all or any number of the charges
framed against such person.

 (2) Nothing in sub-section (1)
shall affect the operation of the provisions
of sections 219, 220, 221 and 223.

 Section 221 Cr.P.C., Where it is
doubtful
what
offence
has
been
committed- (1) If a single act or series of
acts is of such a nature that it is doubtful
which of several offences the facts which
can be proved will constitute, the accused
may be charged with having committed all
or any of such offences and any number of
such charges may be tried at once or he
may be charged in the alternative with
having committed some one of the said
offences.

 (2) If in such a case the accused
is charged with one offence and it
appears in evidence that he committed a
different offence for which he might have
been charged under the provisions of
sub-section (1), he may be convicted of
the offence which he is shown to have
committed, although he was not charged
with it.

 Section 239 B.N.S.S., Court may
alter charge- (1) Any Court may alter or
add to any charge at any time before
judgment is pronounced.

 (2) Every such alteration or
addition shall be read and explained to the
accused.

 (3) If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the Court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the Court may, in
its discretion, after such alteration or
addition has been made, proceed with the
trial as if the altered or added charge had
been the original charge.

 (4) If the alteration or addition is
such that proceeding immediately with the
trial is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor,
the Court may either direct a new trial or
adjourn the trial for such period as may be
necessary.

 (5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has already been obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded.

 Section 241 B.N.S.S., Separate
charges for distinct offences- (1) For every
distinct offence of which any person is
accused there shall be a separate charge
and every such charge shall be tried
separately.
738 INDIAN LAW REPORTS ALLAHABAD SERIES
 Provided that where the accused
person, by an application in writing, so
desires and the Court is of opinion that
such person is not likely to be prejudiced
thereby, the Court may try together all or
any number of the charges framed against
such person.

 (2) Nothing in sub-section (1)
shall affect the operation of the provisions
of sections 242, 243, 244 and 246.

 Section 244 B.N.S.S., Where it is
doubtful
what
offence
has
been
committed- (1) If a single act or series of
acts is of such a nature that it is doubtful
which of several offences the facts which
can be proved will constitute, the accused
may be charged with having committed all
or any of such offences and any number of
such charges may be tried at once or he
may be charged in the alternative with
having committed some one of the said
offences.

 (2) If in such a case the accused
is charged with one offence and it appears
in evidence that he committed a different
offence for which he might have been
charged under sub-section (1), he may be
convicted of the offence which he is shown
to have committed, although he was not
charged with it."

8. The material collected by the
Investigating Officer during investigation is
not evidence as per the Indian Evidence
Act,
1872
or
Bharatiya
Sakshya
Adhiniyam, 2023. The term "evidence" is
defined under Section 3 of the Indian
Evidence Act, 1872 as well as under
Section 2(1)(e) of the Bharatiya Sakshya
Adhiniyam, 2023, which are delineated
below respectively:

 Evidence-"Evidence" means and
includes (1) all statements which the
Court permits or requires to be made
before it by witnesses in relation to matters
of fact under inquiry; such statements are
called oral evidence;

 (2)
all
documents
including
electronic
records
produced
for
the
inspection of the Court;

 such
documents
are
called
documentary evidence.

 Section
2(1)(e)
Evidence"
means and includes (i) all statements
including statements given electronically
which the Court permits or requires to be
made before it by witnesses in relation to
matters of fact under inquiry and such
statements are called oral evidence;

 (ii)
all
documents
including
electronic or digital records produced for
the inspection of the Court and such
documents
are
called
documentary
evidence;

9. The remedy is available to the
accused to seek discharge from the
offences mentioned in the charge-sheet or
cognizance-cum-summoning order. The
Hon'ble Supreme Court in State of
Gujarat
v.
Girish
Radhakrishnan
Varde, (2014) 3 SCC 659, has observed
in paragraphs 13 and 14 of the judgment
that the Judicial Magistrate or court
cannot add or substract, 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. The
relevant
paragraphs
are
delineated
below:
12 All. Pawan Kumar Singh & Ors. Vs. State of U.P. & Anr.
739
 "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 228of 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. The accused has a remedy to
move a discharge application before the
concerned Magistrate or Sessions Court.
The Court, after providing an opportunity
of hearing, may either discharge the
accused or frame charges against the
accused as per the provisions of law
mentioned in the Code of Criminal
Procedure, 1973 or the Bharatiya Nagarik
Suraksha Sanhita, 2023. The relevant
provisions are quoted below:
740 INDIAN LAW REPORTS ALLAHABAD SERIES
 (i). In a Sessions trial, under
Section 227 Cr.P.C. (corresponding Section
250 B.N.S.S.), an application for discharge
is filed while under Section 228 Cr.P.C.
(corresponding Section 251 B.N.S.S.), an
order for framing of charge is passed. The
aforesaid sections of Cr.P.C. and B.N.S.S.
are delineated below:

 "Section
227
Cr.P.C.,
Discharge- 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.

 Section 228 Cr.P.C., Framing of
charge- (1) If, after such consideration and
hearing as aforesaid, the Judge is of
opinion that there is ground for presuming
that the accused has committed an offence
which

 (a) is not exclusively triable by the
Court of Session, he may frame a charge
against the accused and, by order, transfer
the case for trial to the Chief Judicial
Magistrate or any other Judicial Magistrate
of the first class and direct the accused to
appear before such Magistrate on such date
as he deems fit and thereupon such
Magistrate
shall
try
the
offence
in
accordance with the procedure for the trial of
warrant-cases instituted on a police report;

 (b) is exclusively triable by the
Court, he shall frame in writing a charge
against the accused.

 (2) Where the Judge frames any
charge under clause (b) of sub-section (1),
the charge shall be read and explained to
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried.

 Section 250 B.N.S.S., 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.

 Section 251 B.N.S.S., Framing of
charge-(1) If, after such consideration and
hearing as aforesaid, the Judge is of
opinion that there is ground for presuming
that the accused has committed an offence
which

 (a) is not exclusively triable by the
Court of Session, he may frame a charge
against the accused and, by order, transfer
the case for trial to the Chief Judicial
Magistrate or any other Judicial Magistrate
of the first class and direct the accused to
appear before such Magistrate on such date
as he deems fit and thereupon such
Magistrate
shall
try
the
offence
in
accordance with the procedure for the trial of
warrant-cases instituted on a police report;

 (b) is exclusively triable by the
Court of Session, he shall frame in writing
a charge against the accused within a
period of sixty days from the date of first
hearing on charge.
12 All. Pawan Kumar Singh & Ors. Vs. State of U.P. & Anr.
741
 (2) Where the Judge frames any
charge under clause (b) of sub-section (1),
the charge shall be read and explained to
the accused and the accused shall be asked
whether he pleads guilty of the offence
charged or claims to be tried."

 (ii). In the trial of warrant cases
by a Magistrate instituted on a police
report,
under
Section
239
Cr.P.C.
(corresponding Section 262 B.N.S.S.), an
application for discharge is filed while,
under Section 240 Cr.P.C. (corresponding
Section 263 B.N.S.S.), an order for framing
of charge is passed. The aforesaid sections
of Cr.P.C. and B.N.S.S. are delineated
below:

 "Section 239. Cr.P.C., When
accused shall be discharged. If, upon
considering the police report and the
documents sent with it under section 173
and making such examination, if any, of the
accused as the Magistrate thinks necessary
and after giving the prosecution and the
accused an opportunity of being heard, the
Magistrate considers the charge against
the accused to be groundless, he shall
discharge the accused, and record his
reasons for so doing.

 Section 240 Cr.P.C., Framing of
charge. (1) If, upon such consideration,
examination, if any, and hearing, the
Magistrate is of opinion that there is
ground for presuming that the accused has
committed an offence triable under this
Chapter,
which
such
Magistrate
is
competent to try and which, in his opinion,
could be adequately punished by him, he
shall frame in writing a charge against the
accused.

 (2) The charge shall then be read
and explained to the accused, and he shall
be asked whether he pleads guilty of the
offence charged or claims to be tried.

 Section 262 B.N.S.S., When
accused shall be discharged- (1) The
accused may prefer an application for
discharge within a period of sixty days
from the date of supply of copies of
documents under Section 230.

 (2) If, upon considering the police
report and the documents sent with it under
Section 193 and after making such
examination, if any, of the accused as the
Magistrate thinks necessary and after
giving the prosecution and the accused an
opportunity of being heard, the Magistrate
considers the charge against the accused
to be groundless, he shall discharge the
accused and record his reasons for so
doing.

 Section 263 B.N.S.S., Framing
of charge- (1) If, upon such consideration,
examination, if any, and hearing, the
Magistrate is of opinion that there is
ground for presuming that the accused has
committed an offence triable under this
Chapter which the Magistrate is competent
to try and which, in his opinion, could be
adequately punished by him, he shall frame
in writing a charge against the accused
within a period of sixty days from the date
of first hearing on charge.

 (2) The charge shall then be read
and explained to the accused, and he shall
be asked whether he pleads guilty of the
offence charged or claims to be tried.

 (iii). In the trial of warrant cases
by a Magistrate instituted otherwise than
on a police report, i.e. on a complaint,
under Section 245 Cr.P.C. (corresponding
Section 268 B.N.S.S.), an application for
742 INDIAN LAW REPORTS ALLAHABAD SERIES
discharge is filed while, under Section
246(1) Cr.P.C. (corresponding Section
269(1) B.N.S.S.), an order for framing of
charge is passed. The aforesaid sections of
Cr.P.C. and B.N.S.S. are delineated below:

 "Section 245 Cr.P.C., When
accused shall be discharged- (1) If, upon
taking all the evidence referred to in
Section 244, the Magistrate considers, for
reasons to be recorded, that no case
against the accused has been made out
which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge
him.

 (2) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded, the Magistrate considers the
charge to be groundless.

 Section
246(1)
Cr.P.C.,
Procedure
where
accused
is
not
discharged- (1) If, when such evidence has
been taken or at any previous stage of the
case, the Magistrate is of opinion that there
is ground for presuming that the accused
has committed an offence triable under this
Chapter
which
such
Magistrate
is
competent to try and which, in his opinion,
could be adequately punished by him, he
shall frame in writing a charge against the
accused.

 Section 268 B.N.S.S., When
accused shall be discharged-- If, upon
taking all the evidence referred to in
Section 267, the Magistrate considers, for
reasons to be recorded, that no case
against the accused has been made out
which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge
him.
 (2 ) Nothing in this section shall
be deemed to prevent a Magistrate from
discharging the accused at any previous
stage of the case if, for reasons to be
recorded by such Magistrate, he considers
the charge to be groundless.

 Section
269(1)
B.N.S.S.,
Framing of charge- (1) If, when such
evidence has been taken or at any previous
stage of the case, the Magistrate is of
opinion that there is ground for presuming
that the accused has committed an offence
triable under this Chapter which such
Magistrate is competent to try and which,
in his opinion, could be adequately
punished by him, he shall frame in writing
a charge against the accused."

11. After framing of charge, if the
accused does not plead guilty, the trial
court shall call the prosecution witnesses
and the accused shall be given an
opportunity of hearing to cross-examine the
witnesses and lead evidence and before
entering into defence, the Court may acquit
the accused under Section 232 Cr.P.C.
(corresponding Section 255 B.N.S.S.) in a
Sessions trial. In the case of trial of warrant
cases, the accused shall be provided an
opportunity of hearing to cross-examine the
prosecution witnesses under Sections 242
and 246(4) Cr.P.C. (corresponding Sections
265 and 269(4) B.N.S.S.). The provisions
mentioned in the aforesaid sections of
Cr.P.C. and B.N.S.S. are delineated below:

 "Section 232 Cr.P.C., Acquittal-
If, after taking the evidence for the
prosecution, examining the accused and
hearing the prosecution and the defence
on the point, the Judge considers that there
is no evidence that the accused committed
the offence, the Judge shall record an order
of acquittal.
12 All. Pawan Kumar Singh & Ors. Vs. State of U.P. & Anr.
743
 Section 242 Cr.P.C., Evidence
for prosecution- (1) If the accused refuses
to plead or does not plead or claims to be
tried or if the Magistrate does not convict
the accused under Section 241, the
Magistrate shall fix a date for the
examination of witnesses.

 (2) The Magistrate may, on the
application of the prosecution, issue a
summons to any of its witnesses directing
him to attend or to produce any document
or other thing.

 (3) On the date so fixed, the
Magistrate shall proceed to take all such
evidence as may be produced in support of
the prosecution.

 Section
246(4)
Cr.P.C.,
Procedure
where
accused
is
not
discharged- (4) If the accused refuses to
plead, or does not plead or claims to be
tried or if the accused is not convicted
under sub-section (3 ), he shall be required
to state, at the commencement of the next
hearing of the case, or, if the Magistrate
for reasons to be recorded in writing so
thinks fit, forthwith, whether he wishes to
cross-examine any, and, if so, which, of the
witnesses
for
the
prosecution
whose
evidence has been taken.

 Section 255 B.N.S.S., Acquittal-
If, after taking the evidence for the
prosecution, examining the accused and
hearing the prosecution and the defence on
the point, the Judge considers that there is
no evidence that the accused committed the
offence, the Judge shall record an order of
acquittal.

 Section 265 B.N.S.S., Evidence
for Prosecution- (1 ) If the accused refuses to
plead or does not plead, or claims to be tried
or the Magistrate does not convict the
accused under section 264, the Magistrate
shall fix a date for the examination of
witnesses:

 Provided that the Magistrate shall
supply in advance to the accused, the
statement of witnesses recorded during
investigation by the police.

 (2 ) The Magistrate may, on the
application of the prosecution, issue a
summons to any of its witnesses directing him
to attend or to produce any document or
other thing.

 (3 ) On the date so fixed, the
Magistrate shall proceed to take all such
evidence as may be produced in support of
the prosecution:

 Provided that the Magistrate may
permit the cross-examination of any witness
to be deferred until any other witness or
witnesses have been examined or recall any
witness for further cross-examination:

 Provided further that evidence of a
witness under this sub-section may be
recorded by audio-video electronic means.

 Section 269(4) B.N.S.S., If the
accused refuses to plead, or does not plead or
claims to be tried or if the accused is not
convicted under sub-section (3 ), he shall be
required to state, at the commencement of the
next hearing of the case, or, if the Magistrate
for reasons to be recorded in writing so
thinks fit, forthwith, whether he wishes to
cross-examine any, and, if so, which, of the
witnesses for the prosecution whose evidence
has been taken."

13. Before the stage of framing of
charge, remedy is available to the accused
744 INDIAN LAW REPORTS ALLAHABAD SERIES
as per the conditions mentioned in the
judgments of Arnesh Kumar vs. State of
Bihar; 2014 (8) SCC 273 and Satyendra
Kumar Antil vs. Central Bureau of
Investigation and Another; 2021 (10)
SCC 773, that the accused may not be
taken into custody during investigation for
the offence mentioned in the F.I.R. and the
accused may file a writ petition for
quashing of the F.I.R. or for stay of arrest
during investigation or move an application
for anticipatory bail or regular bail before
the competent Court and participate in the
discharge proceedings.

14. In view of the aforesaid facts
and circumstances of the case, this Court is
not inclined to grant any relief to the
applicant as prayed in the prayer clause as
the issue has already been settled by the
Honble Supreme Court in the case of
State
of
Gujarat
v.
Girish
Radhakrishnan Varde; (2014) 3 SCC
659, in paragraphs 13 and 14 of the
judgment.

15. Accordingly, the application is
dismissed.

16. The trial court is directed to
frame charge in accordance with law.
----------
(2025) 12 ILRA 744
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Misc. Bail Application No. 43604 of
2025

Rihan ...Applicant
Versus
State of U.P. ....Opposite Party

Issue for Consideration
Whether the applicant is entitled to be released
on bail during the investigation/trial.

Head Notes
The
Bharatiya
Nyaya
Sanhita,2023Sections
109(1),
109(2),
118(2),
121(1), 189(5), 191(2), 191(3), 195(1),
196(1), 196(2), 223, 310(2), 324(5),
324(6), 61(2) & 62; 7 Criminal Law
Amendment Act; The Bharatiya Nagarik
Suraksha
Sanhita,2023-Section
483;
The Prevention of Damage of Public
Property Act,1984-Section 3/4- That
the slogan raised by an individual
person or by a crowd that "gustakh-enabi ki ek saja, sar tan se juda, sar tan
se juda" is a challenge to the authority
of law as well as sovereignty and
integrity of India as the same incites
the people for arm rebellion, therefore,
this act not only will be punishable
under Section 152 BNS but also against
the
basic
tenets
of
Islam-Bail
application rejected.(E-15)

Held- Sufficient material in the case diary
showing that the applicant was part of an
unlawful assembly which not only raised
objectionable slogans challenging the authority
of the Indian legal system but also caused
injuries to police personnel and damaged public
as well as private property, which is nothing but
an offence against the State and he was
arrested from the spot. Therefore, this court
does not find any ground to release the
applicant on bail.
(Para 12 & 14)
Case Law Cited

List of Acts
The Bharatiya Nyaya Sanhita; Criminal Law
Amendment Act; The Prevention of Damage of
Public Property Act,1984

List of Keywords
Slogan raised; Challenging the authority of law :
As well as sovereignty and integrity of India; Act
not only punishable u/s 152 BNS; Also against
the basic tenets of Islam