Neutral Citation No. - 2025:AHC:82627 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 7025 of 2025 Applicant :- Nitin Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arun Kumar Bajpai Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Arun Kumar Bajpai, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. Applicant-Nitin Pandey,who is a named as well as charge sheeted accused and has now been summoned by Court below, has 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 graciously be pleased to allow the present application under section 528 of B.N.S.S. and quash the charge sheet dated 18.02.2023 as well as entire proceedings of Case No. 2864 of 2024 (State Vs. Nitin Pandey) arising out of case crime no. 791 of 2022 Under Section 379 I.P.C., Police Station- Kotwali, District-Fatehpur and also summoning/ cognizance order dated 23.02.2024, whereby the learned Court of Chief Judicial Magistrate, Fatehpur took cognizance against the applicant, pending in the Court of Chief Judicial Magistrate, Fatehpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceedings of Case No. 2864 of 2024 (State Vs. Nitin Pandey) arising out of case crime no. 791 of 2022, Under Section 379 I.P.C., Police Station-Kotwali, District-Fatehpur, pending in the Court of Chief Judicial Magistrate, Fatehpur. And/or pass any other and further as this Hon'ble Court may deem fit and proper under the circumstances of the present case." 4. At the very outset, the learned A.G.A. has raised a preliminary objection by submitting that applicant has 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 applicant or not, whether there is any evidence against applicant and whether the prosecution of applicant 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 18.02.2023 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 to submit the charge sheet/police report. 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 judgements has observe that in the absence of material collected by the Investigating Officer, leading to the submission of charge sheet/police report neither the veracity of the charge sheet/police report submitted by the Investigating Officer in terms of Section 173 (2) Cr. P. C. nor the proceedings pending against an accused can be examined in exercise of jurisidiction under Section 482 Cr. P. C. It is thus contended by the learned A.G.A. 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 applicant 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 applicant to approach 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 applicant to approach Court below by moving a discharge application in terms of Section 239 Cr.P.C./262 BNSS seeking his 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 applicant within aforesaid period, Court below shall decide the same by a reasoned and speaking order and in the light of the directions 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 applicant. Order Date :- 17.5.2025 HSM Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad