Neutral Citation No. - 2025:AHC:59407 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 4674 of 2025 Applicant :- Ajay Mishra And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mridul Mishra,Umesh Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Umesh Kumar Dubey, the learned counsel for applicants and the learned A.G.A. for State opposite party 1. 2. Perused the record. 3. Applicants Ajay Mishra and another, who are charge sheeted accused and have been summoned by Court below, have approached this Court by means of present application under Section 528 B.N.S.S. with the following prayer:- "It is, therefore, MOST RESPECTFULLY prayed that this Hon'ble Court may kindly be pleased to allow the present application and set aside the impugned Cognizance/Summoning Order dated 14-05-2024 as well as Charge Sheet No. 144 of 2023 dated 19-05-2023 filed under Sections 323. 504, 506 and 325 of I.P.C., arising out of Case Crime No. 49 of 2023, under Sections 323, 504 and 506 of I.P.C. Police Dehat Station- Chaubeypur, District- Kanpur Nagar including Entire Proceeding to be initiated in pursuance of impugned Cognizance/Summoning Order dated 14-05-2024. in the interest of justice. It is further prayed that this Hon'ble Court may be pleased to stay further/entire proceedings to be initiated in pursuance of impugned Cognizance/Summoning Order dated 14-05-2024 as well as Charge Sheet No. 144 of 2023 dated 19-05-2023 filed under Sections 323, 504, 506 and 325 of I.P.C., arising out of Case Crime No. 49 of 2023, under Sections 323, 504 and 506 of L.P.C.. Police Station-Dehat Chaubeypur. District- Kanpur Nagar during the pendency of the present criminal application. Otherwise applicant shall suffer irreparable loss and injury. And/or to pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case." 4. At the very outset, the learned A.G.A. submits that applicants have rushed to this Court by filing the present application under Section 528 B.N.S.S. without availing statutory remedy available under Section 239 Cr.P.C./262 B.N.S.S. Learned A.G.A. further submits that Court below can deal with the grounds raised in support of this application threadbare at the first instance as it has the advantage of original record Furthermore, Court below upon appraisal and appreciation of the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms Section 173 (2) Cr. P. C. can return clear and cogent findings as to whether any offence is made out against applicants as per above, whether there is any evidence against applicants or whether the prosecution of applicants can be sustained on the ground of grave suspicion. On the above premise, the learned A.G.A. thus submits that no interference is warranted by this Court in present application under Section 528 B.N.S.S. 5. When confronted with above, the learned counsel for applicants proceeded to address the Court on the merits of this application. However, after some arguments, he gave up the prayer prayed for by means of present application and contended that interest of justice shall be served in case liberty is granted to applicants to approach the Court below by moving a discharge application. 6. Having heard the learned counsel for applicants, 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. 7. 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 239 Cr.P.C./262 B.N.S.S. 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 along with a certified copy of this order, the Court below shall proceed to decide the same by a reasoned and speaking order in the light of the observation made by Apex Court in Sanjay Kumar Rai Vs. State of U.P., 2022 (15) SCC 720 within a period of two months thereafter, provided there is no other legal impediment. 8. It goes without saying that till the disposal of discharge application as directed above, Court below shall not proceed further with the matter. Order Date :- 21.4.2025/HSM Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad