Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 37861 of 2024 Applicant :- Neha Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Kumar,Shrawan Kumar Pandey Counsel for Opposite Party :- Dr. C.P. Upadhyay,G.A.,Shailesh Upadhyay Hon'ble Rajeev Misra,J. 1. Heard Mr. Shrawan Kumar Pandey, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Dr. C.P. Upadhyay, along with Mr. Shailesh Upadhyay, the learned counsel representing first informant opposite party-2. 2. Perused the record. 3. Applicant-Neha Agarwal who is a charge sheeted accused has approached this Court by means of present application under Section 528 BNSS with the following prayer: "It is, therefore, Most Respectfully prayed that the Hon'ble Court may graciously be pleased to allow the present application under section 528 of Bhartiya Nagrik Suraksha Sanhita (B.N.S:S.), 2023 and further be pleased to set aside the entire proceeding of Case No.110021 of 2024 (State Vs. Neha Agarwal) which is arising from the impugned cognizance order dated 05.10.2024, over the charge sheet submitted by the Investigating Officer on 25.09.2024 in Case Crime No.99 of 2024, under Section 103 (1) and 238 of Bharatiya Nyaya Sanhita, (B.N.S.), Police Station Sector 142, District Gautam Buddha Nagar (Noida) it is also prayed that the Hon'ble Court may be pleased to set aside the impugned summoning order dated 05.10.2024 passed by Learned Chief Judicial Magistrate, Gautam Buddha Nagar in the aforesaid case. It is also prayed that the Hon'ble Court may pleased to stay the further proceeding of Case No.110021 of 2024 (State Vs. Neha Agarwal) pending before the Court of Learned Chief Judicial Magistrate, Gautam Buddha Nagar, in Case Crime No.99 of 2024, under Section 103 (1) and 238 of Bharatiya Nyaya Sanhita, (B.N.S.), Police Station Sector 142, District Gautam Buddha Nagar (Noida), And/or to pass such other and further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case." 4. Learned counsel for applicant submits that initially an F.I.R. dated 7.8.2024 was lodged by first informant/opposite party-2 and was registered as Case Crime No. 99 of 2024, under section 108 BNS. Applicant has already been enlarged on bail under section 108 BNS. However, subsequently, section 103(1) and 238 BNS were added. 5. At the very outset, the learned A.G.A. submits that applicant has rushed to this Court by filing present application under Section 528 BNSS without availing the statutory remedy available under Section 262 BNSS Learned A.G.A. further submits that court below can deal with the grounds raised in support of this application thread bare at the first instance as it has the advantage of original record. On the above premise, the learned A.G.A. submits that no interference is warranted by this Court in present application under Section 528 BNSS. 6. When confronted with above, the learned counsel for applicants could not overcome the same. 7. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record this court finds that no useful purpose shall be served in keeping this application pending, as the grounds raised by the learned counsel for applicants in support of this application can very well be examined by court below meticulously at the time of deciding the discharge application as court below has the advantage of having the original record. 8. Accordingly this application is disposed of finally with a direction to the applicants to approach court below by filing a discharge application in terms of Section 262 BNSS seeking their discharge in above mentioned criminal case. In case, such a discharge application is filed by applicants within a period of two weeks from today alongwith a certified copy of this order, the court below shall proceed to decide the same by a reasoned and speaking order within a period of two months thereafter, provided there is no other legal impediment. 9. It goes without saying that till the disposal of discharge application as directed above, court below shall not proceed further with the matter. 10. After aforementioned order was passed, the learned counsel for applicant submitted that applicant has not yet been enlarged on bail under the added sections. 11. Considering the fact that applicant has not yet been enlarged on bail under the added sections, it is hereby provided that applicant shall surrender before Court below within a period of two weeks from today and shall file his application for bail. Court below shall thereafter enlarge the applicant on interim bail and decide the discharge application. The interim bail granted to applicant by Court below shall come to an end automatically upon disposal of the discharge application. However, the Court below while considering the application for bail of applicant shall be guided by the provisions contained in Section 480 BNSS. Order Date :- 10.1.2025 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad