Neutral Citation No. - 2025:AHC:137584 Court No. - 76 Case :- APPLICATION U/S 528 BNSS No. - 20032 of 2025 Applicant :- Vinod Tyagi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Akhilesh Srivastava,Vaibhav Tripathi Counsel for Opposite Party :- G.A.,Satish Kumar Tyagi Hon'ble Vikram D. Chauhan,J. 1. The present application under Section 528 BNSS has been filed with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the present application and quash the Charge framing order dated 07.04.2025 passed by Session Judge Ghaziabad in S.T. No. 47 of 2025 (State Vs. Mayank Tyagi & another) arising out of Case Crime No. 762 of 2024 under Section 80 alternative 103(1) of B.N.S., 2023, 115(2), 85 of B.N.S., 2023 and Section 3/4 of Dowry Prohibition Act at Police Station Nandgram District Ghaziabad, pending in the court of Session Judge Ghaziabad. And further be pleased to stay the Charge framing order dated 07.04.2025 passed by Session Judge Ghaziabad in S.T. No. 47 of 2025 (State Vs. Mayank Tyagi & another) arising out of Case Crime No. 762 of 2024 under Section 80 alternative 103(1) of B.N.S., 2023, 115(2), 85 of B.N.S., 2023 and Section 3/4 of Dowry Prohibition Act at Police Station Nandgram District Ghaziabad, pending in the court of Session Judge Ghaziabad, during pendency of the present application before this Hon'ble Court." 2. Learned counsel for the applicant submits that initially applicant was being proceeded under Sections 80, 115(2) and 85 of B.N.S. and Section 3/4 of Dowry Prohibition Act, however, at the stage of framing of charge, by the impugned order, an alternate charge under Section 103(1) of B.N.S. has been framed. Learned counsel for the applicant further submits that the aforesaid alternate charge of Section 103(1) of B.N.S. has been framed primarily on account of direction of the Supreme Court in the case of Rajbir Alias Raju and another Vs. State of Harayana, 2010 (15) SCC 116. Learned counsel for the applicant further submits that general direction was issued to the trial courts by the Supreme Court for adding Section 302 I.P.C. [103(1) of B.N.S.] in all the trials regarding heinous and barbaric crimes against women. Learned counsel for the applicant further submits that the aforesaid direction of the Supreme Court in case of Rajbir Alias Raju (supra) has been considered in the case of Jasvinder Saini and others Vs. State (Government of NCT of Delhi), (2013) 7 SCC 256. Learned counsel for the applicant has relied upon paragraph nos. 14, 15 of the aforesaid judgment which are quoted hereinbelow:- "14. Be that as it may, the common thread running through both the orders is that this Court had in Rajbir's case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. 15. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir's case. The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir's case, but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court." 3. Learned counsel for the applicant further submits that charge under Section 302 I.P.C. [103(1) of B.N.S.] could only be framed if there is material evidence and circumstance for the aforesaid charge which is based on the law laid down by the Apex Court in the case of Jasvinder Saini (supra). Learned counsel for the applicant submits that the impugned order does not record any reason with regard to material available in the charge sheet which is the basis of forming an opinion for the alternate charge under Section 103(1) of B.N.S. Learned counsel for the applicant further submits that once the order has been passed in mechanical manner in respect of the alternate charge, then the impugned order is bad in law. 4. Learned counsel for opposite party no. 2 as well as learned A.G.A. has opposed the prayer, however, they could not dispute the fact that as per the law laid down by the Supreme Court in the case of Jasvinder Saini (supra), the impugned order does not record any reason for framing of the alternate charge nor any material has been disclosed. 5. At this stage, learned counsel for the parties agree that the impugned order may be set aside and the matter may be remanded back to the trial court for framing of charge afresh by considering the law laid down by the Supreme Court in the case of Jasvinder Saini (supra). 6. In view of the submissions made by learned counsel for the parties, the impugned order dated 07.04.2025 passed by Sessions Judge Ghaziabad in S.T. No. 47 of 2025 (State Vs. Mayank Tyagi & another) arising out of Case Crime No. 762 of 2024 under Section 80 alternative 103(1) of B.N.S., 2023, 115(2), 85 of B.N.S., 2023 and Section 3/4 of Dowry Prohibition Act is set aside and the matter is remanded back to the trial court for decision afresh in terms of the law laid down by the Supreme Court in the above cases. 7. Accordingly, the present application under Section 528 B.N.S.S. is allowed. Order Date :- 13.8.2025 VMA Digitally signed by :- VISHWA MOHAN ARORA High Court of Judicature at Allahabad