Neutral Citation No. - 2025:AHC:61507 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 13379 of 2025 Applicant :- Sameer Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Aftab Alam Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Aftab Alam, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. On the matter being taken up, the learned A.G.A. submits that notice of this application under Section 528 BNSS has already been served upon first informant-opposite party-2 on 20.04.2025. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 in opposition to this application nor any one has put in appearance on his behalf to oppose this application, even in revised call. 4. Applicant-Sameer, who is a charge sheeted accused and facing trial before 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 to this Hon'ble Court that this Hon'ble Court may graciously be pleased to allow this application and to quash the Charge sheet no. 184/2024 dated 20.12.2024 and cognizance order dated 07.01.2025 as well as the entire criminal proceedings of Special Session Trial no. 46/2025 (State of U.P. Vs Sameer) arising out of case crime no. 241/2024 u/s 69, 115(2) of BNS and section 3/4 of POCSO Act, Police Station Kotwali, District Kanpur Nagar pending in the court of Additional District and Session Judge, Room No. 13/POCSO Act, Kanpur Nagar otherwise he will suffer irreparable loss and injury. It is further prayed to this Hon'ble Court that during the pendency of instant application this Hon'ble Court may graciously be pleased to stay the effect and operation of the Cognizance Order dated 07.01.2025 as well as the further proceedings of Special Session Trial no. 46/2025 (State of U.P. Vs Sameer) pending in the court of Additional District and Session Judge, Room No. 13/POCSO Act, Kanpur Nagar otherwise he will suffer irreparable loss and injury. And/or to pass such other and further order or direction which this Hon'ble Court may deem fit and proper under the aforesaid 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 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. 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 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 of finally with a direction to applicant to approach Court below by moving a discharge application in terms of Section 227 Cr.P.C./250 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 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. 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 Vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad