Neutral Citation No. - 2025:AHC:83113 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 4717 of 2025 Applicant :- Mr. Tanuj Mavi Alias Tanuj Gurjar And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prateek Rai Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Prateek Rai, the learned counsel for applicants and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. Applicants- Mr. Tanuj Mavi Alias Tanuj Gurjar And 2 Others, who are named as well as charge sheeted accused and have now been summoned by Court below, have approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to allow this application and quash the summoning order dated 07.12.2024 passed by the learned Additional Chief Judicial Magistrate, Ghaziabad, in Case Crime No. 568 of 2024 (State Vs. Tanuj Gurjar) under Section P.S. Loni 329(4), 352, 351(2) and 324(5), of the B.N.S. P.S. Loni, Ghaziabad as well as the entire proceedings arising out of Case Crime No. 568 of 2024, pending in the Court of learned Additional Chief Judicial Magistrate, Ghaziabad. And/or be further pleased to pass such other and further order/orders as this Hon'ble Court may deem fit and proper in the circumstances of the case in the interest of Justice." 4. At the very outset, the learned A.G.A. has raised a preliminary objection by submitting that applicants have rushed to this Court by filing the present application under Section 528 BNSS without availing the statutory alternative remedy under Section 239 Cr.P.C./262 BNSS. 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. Learned A.G.A. further submits that Court below can easily return findings on the issues as to whether as per the papers accompanying the charge sheet/police report submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C., any offence is made out against applicants or not, whether there is any evidence against applicants and whether the prosecution of applicants can be sustained on account of grave suspicion. On the above premise, the learned A.G.A. submits that no interference is warranted by this Court in present application. 5. It is further submitted by the learned A.G.A. that statements of witnesses examined under Section 161 Cr.P.C., some of whom have also been nominated as prosecution witnesses in the charge sheet/police report dated 25.11.2024 submitted by the Investigating Officer under Section 173(2) Cr.P.C. have not been brought on record. Furthermore, there is no categorical averment in the affidavit filed in support of present application regarding the other material collected by Investigating Officer and relied upon by him to submit the charge sheet/police report. Furthermore, the said material has also not been brought on record. Referring to the judgment of Supreme Court in Kaptan Singh Vs. State of U.P., (2021) 9 SCC 35, the learned A.G.A. submits that the Apex Court in aforementioned judgement has itself observed in the absence of material collected by the Investigating Officer, leading to the submission of charge sheet, the veracity of the charge-sheet/police report submitted against an accused or the proceedings pending against an accused can not be examined by this Court. Learned A.G.A. thus contends that no interference is warranted by this Court in present application. As such, the present application is misconceived and is, therefore, liable to be dismissed. 6. 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 fairly gave up the prayer made by means of present application. He submits that interest of justice shall be served, in case, liberty is granted to applicants to approach the Court below by moving a discharge application in terms of Section 239 Cr.P.C./262 BNSS. 7. Learned A.G.A. representing State-opposite party-1 has no objection to the prayer made by the learned counsel for applicants. 8. Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that no useful purpose shall be served in keeping this application pending. 9. Accordingly, this application is disposed of finally with liberty to applicants to approach Court below by moving a discharge application in terms of Section 239 Cr.P.C./262 BNSS seeking their discharge in aforementioned criminal case along with a certified copy of this order within a period of two weeks from today. In case, such a discharge application is filed by applicants within aforesaid period, Court below shall decide the same by a reasoned and speaking order and in the light of the direction contained in the judgment of Supreme Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720 within a period of two months thereafter provided there is no other legal impediment. 10. It goes without saying that till the disposal of discharge application as directed above, Court below shall not proceed further against applicants. Order Date :- 17.5.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad