Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 16211 of 2025 Applicant :- Shivam Mishra Alias Shiv Hari Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashi Shekhar Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Shashi Shekhar Mishra, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. On the matter being taken up, the learned A.G.A. submits that notice of this application under section 528 BNSS has been served upon first informant/opposite party-2 on 1.5.2022. However inspite of service of notice upon first informant/opposite party-2 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. Applicant- Shivam Mishra Alias Shiv Hari Mishra who is a named and charge sheeted accused and has now been summoned by Court below, has 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 may graciously be pleased to allow the present application and quash the entire proceedings of Case No. 1197 of 2024 (State Vs. Shivam Mishra @ Shiv Hari Mishra) arising out of Case Crime No. 50 of 2024, Under Sections- 354, 504, 506, 376 L.P.C., P.S.-Belghat, District-Gorakhpur and impugned charge sheet dated 24.07.2024 and cognizance as well as summoning order dated 01.08.2024 pending in the Court of Learned A.C.J. (J.D.)/ Judicial Magistrate, Bansgaon, District- Gorakhpur. It is further prayed that this Hon'ble Court may kindly be pleased to Stay the further proceedings of Case No. 1197 of 2024 (State Vs. Shivam Mishra @ Shiv Hari Mishra) arising out of Case Crime No. 50 of 2024, Under Sections-354, 504, 506, 376 I.P.C., P.S.-Belghat, District-Gorakhpur pending in the Court of Learned A.C.J. (J.D.) / Judicial Magistrate, Bansgaon, District-Gorakhpur. It is further prayed that this Hon'ble Court may graciously be pleased to stay the impugned charge sheet dated 24.07.2024 and cognizance as well as summoning order dated 01.08.2024 in Case No. 1197 of 2024 (State Vs. Shivam Mishra @ Shiv Hari Mishra) arising out of Case Crime No. 50 of 2024, Under Sections-354, 504, 506, 376 I.P.C., P.S.-Belghat, District- Gorakhpur pending in the Court of ChLearned A.C.J. (J.D.) / Judicial Magistrate, Bansgaon, District-Gorakhpur and/or pass such other and further order or direction, which this Honble Court may deem fit and proper under the facts and circumstances of the case, otherwise Applicant shall suffer irreparable loss and injury." At the very outset, the learned A.G.A. for State/opposite party-1 has raised a preliminary objection by submitting that in the charge sheet/police report submitted by Investigating Officer in terms of Section 173(2) Cr.P.C. against accused/applicant, as many as 8 prosecution witnesses have been nominated therein. However, the statements of all the witnesses nominated in the charge sheet, previously recorded under section 161 Cr.P.C., have not been brought on record. It is then contended by the learned A.G.A. that there is no averment in the entire affidavit filed in support of present application with regard to the other material collected by the Investigating Officer during course of investigation in submitting the charge sheet/police report. Furthermore, the said documents have also not been brought on record. On the aforesaid premise, the learned A.G.A. submits that in the absence of above material the veracity of the charge/sheet or the proceedings pending before Court below cannot be examined by this Court. To buttress his submission, he has relied upon judgement of Apex Court in Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580. On the edifice of aforesaid submissions, the learned A.G.A. thus submits that no interference is warranted by this Court in present application. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant, with reference to the record. As such, no good ground exists to entertain the present application. In view of above, this application fails and is liable to be dismissed. It is accordingly dismissed. Order Date :- 8.5.2025/Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad