HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 10967 of 2025 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. Heard learned counsel for applicants and Sri Amit Kumar Yadav, learned counsel appearing on behalf of opposite party no.4 as well as learned AGA for the State-respondent. 2. The present application has been preferred challenging chargesheet dated 29.06.2024 and cognizance/summoning order dated 03.02.2025 along with entire proceedings of Special Sessions Trial No.132 of 2025, arising out of Case Crime No.48 of 2024, under Section 452, 354-A IPC and Section 7/8 of POCSO Act, P.S. Khanpur, District Ghazipur, pending before learned Special Judge, POCSO Act, Ghazipur 3. Learned counsel for applicants has argued that applicants have been falsely implicated in the present case by opposite party no.4 only to harass them since no offence as alleged, has ever been committed by applicants. It has also been argued by learned counsel for applicants that there are several contractions in the statement of victim recorded under Section 161 and 164 Cr.P.C. Learned counsel for applicants has further submitted that earlier and FIR has already been lodged by opposite party no.4 implicating the applicants, meaning thereby, informant is hellbent in trapping the applicants anyhow. It has also been argued by learned counsel for applicants that without conducting fair investigation, the concerned Investigating Officer submitted chargesheet against applicants but without considering the said facts and without applying its judicial mind, learned court concerned took cognizance of offence over the said chargesheet which is abuse of process of law and as such, same may be quashed. 4. Per contra, learned AGA vehemently opposed the prayer as made in the application by way of submitting that the contentions, which are sought to be Versus Counsel for Applicant(s) : Saurabh Pandey, Suresh Chandra Pandey Counsel for Opposite Party(s) : G.A., Neha Sonker Shivam Yadav And Another .....Applicant(s) State Of U.P. And 3 Others .....Opposite Party(s) raised on behalf of applicants, would relate to disputed questions of fact, and would involve appreciation of evidence. It is submitted that at the time of taking cognizance, only a prima facie case is to be seen and the court concerned is not expected to hold a mini trial. 5. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, this Court is of the opinion that at the stage of taking cognizance/summoning, the Magistrate is only required to record a prima facie opinion, based on the material on record, and is not expected to hold a mini trial or to examine the defence of the accused. In judgment rendered by Hon'ble Apex Court in case of S.W. Palanitkar and Others v. State of Bihar and Another; (2002) 1 SCC 241, it was held that the test which was required to be applied was whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction". In the case of Nupur Talwar v. Central Bureau of Investigation and Another; (2012) 11 SCC 465, it was reiterated that the limited purpose of consideration of material at the stage of issuing process being tentative as distinguished from the actual evidence produced during trial, the test to be applied at the stage was whether the material placed before the Magistrate was "sufficient for proceeding against the accused" and not "sufficient to prove and establish the guilt". At the stage of taking cognizance, a court's primary focus is to determine if a prima facie case exists, meaning whether there is sufficient evidence to suggest that an offense has been committed, and not to delve into the merits of the case or the evidence. 6. The aforementioned legal position has also been considered in a recent decision of this Court in the judgment dated 6.5.2024 passed in Matters under Article 227 no. 3254 of 2024 (Kailash and another vs. State of U.P. and another). 7. From perusal of the material available on record in shape of narrations made in the FIR, chargesheet, statements under Sections 161 and 164 Cr.P.C. and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicants. All the submission made at the bar, relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 BNSS. 8. Accordingly, the prayer sought through the instant application, is refused. 9. Lastly, learned counsel for applicants submitted that applicant no.1, namely, Shivam Yadav is a student and as such, liberty may be granted to him to prefer discharge application through counsel. 10. Considering the said submission, applicant no.1 is hereby permitted to NA528 No. 10967 of 2025 2 prefer discharge application through counsel within three weeks from today before learned court concerned and till the outcome of the said discharge application, no coercive action shall be initiated against applicant no.1. 11. In sofar as applicant no.2 is concerned, liberty is granted to him to surrender before the court concerned and apply for bail within three weeks from today, the same shall be considered and decided expeditiously in accordance with law laid down in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another (2022 SCC OnLine SC 825). However, it is made clear that till three weeks from today, no coercive action shall be taken against applicant no.2 herein in pursuance of aforesaid case. 12. The instant application stands disposed of, accordingly. September 8, 2025 Vivek Kr. NA528 No. 10967 of 2025 3 (Saurabh Srivastava,J.) Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad