Neutral Citation No. - 2025:AHC:60614 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 11332 of 2025 Applicant :- Sarabjeet Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Srivastava,Sunil Kumar Saroj Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. A.K.Srivastava, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. Applicants- Sarabjeet, who is charge sheeted accused and has been summoned by Court below, has approached this Court by means of present application under Section 528 BNS with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the entire proceeding of the Sessions Trial No.35 of 2025 (State versus Sarabjeet Singh), Case Crime No.357 of 2024, under Sections 376, 406 I.P.C., Police Station Madhuban Bapudham, District Ghaziabad, pending in the court of the learned Additional Sessions Judge, Fast Track Court-2, District Ghaziabad and the Impugned Charge-Sheet dated 29.11.2024 and the Impugned Cognizance Order dated 16.01.2025 passed by the learned Sessions Judge, District Ghaziabad in Sessions Trial No.35 of 2025 (State versus Sarabjeet Singh), Case Crime No.357 of 2024, under Sections 376, 406 I.P.C., Police Station Madhuban Bapudham, District Ghaziabad, pending in the court of the learned Additional Sessions Judge, Fast Track Court-2, District Ghaziabad in the interest of justice. It is further prayed that this Hon'ble Court may kindly be pleased to stay the entire proceeding of the Sessions Trial No.35 of 2025 (State versus Sarabjeet Singh), Case Crime No.357 of 2024, under Sections 376, 406 I.P.C., Police Station Madhuban Bapudham, District Ghaziabad, pending in the court of the learned Additional Sessions Judge, Fast Track Court-2, District Ghaziabad during the pendency of the present application before this Honble Court, otherwise the applicant shall suffer irreparable loss and injury. And/or this Hon'ble Court may pass such other and orders which deem fit and proper under the facts and circumstances of the 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 statutory alternative remedy under Section 227 Cr.P.C./250 BNSS. 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. 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. thus submits that no interference is warranted by this Court in present application. 5. 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 applicants to approach Court below by moving a discharge application in terms of Section 227 Cr.P.C./250 BNSS. 6. Learned A.G.A. representing State-opposite party-1 has no objection to the prayer made by the learned counsel for applicant. 7. Having heard the learned counsel for applicant, 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. 8. Accordingly this application is disposed off finally with liberty to the applicant to approach Court below by moving a discharge application in terms of Section 227 Cr.P.C./250 BNSS seeking his discharge in above mentioned criminal case. In case, such a discharge application is filed by applicant within a period of two weeks from today along with a certified copy of this order, the Court concerned shall decide the same by a reasoned and speaking order in the light of the observations made by Apex 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. 9. It goes without saying that till the disposal of discharge application as directed above, Court below shall not proceed further against applicant. Order Date :- 22.4.2025 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad