Neutral Citation No. - 2025:AHC:106688 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 21425 of 2025 Applicant :- Sumit Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ved Prakash Pandey Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard learned counsel for applicant and learned AGA for the State-respondent. 2. The present application has been preferred challenging the chargesheet dated 28.01.2025 and cognizance as well as summoning order dated 04.04.2025 passed in Case No.4808 of 2025 (State Vs. Sumit), arising out of Case Crime No.289 of 2024, under Section 74, 333 BNS and Section 3/25 Arms Act, Police Station Madanapur, District Shahjahanpur, pending in the court of learned Additional Civil Judge (J.D.)/ Judicial Magistrate, Tilhar, Shahjahanpur. 3. Brief facts of the present case are that an FIR bearing Case Crime No.289 of 2024, under Section 74, 333 BNS and Section 3/25 Arms Act was lodged by opposite party no.2 implicating the applicant alleging that on dated 11.08.2024 at about 01 AM, when applicant was sleeping in her house, applicant came her house with tamancha and hold her hand. After registration of the FIR, inquiry was initiated in shape of recording statements under Section 180 BNSS and collecting evidence which culminated into submission of chargesheet against applicant on dated 28.01.2025 whereupon learned court took cognizance of offence vide order dated 04.04.2025 and summoned the applicant for facing trial which impugned the present application. 4. Learned counsel for applicant argued that applicant has falsely been implicated in the present case since there was no independent witness of the alleged incident. It has also been argued by learned counsel for applicant that without conducting fair investigation and only relying upon the statement of informant, the concerned Investigating Officer submitted chargesheet against applicant but without considering the said facts and without applying its judicial mind, learned court concerned taken cognizance of offence over the said chargesheet which is abuse of process of law and as such, same may be quashed. 5. 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 raised on behalf of applicant, 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. 6. 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. 7. 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). 8. From perusal of the material available on record in shape of narrations made in the FIR as well as statements recorded during investigation along with statement under Section 183 BNSS and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicant. 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. 9. On aforesaid reason, the present application is devoid of merit and, hence, the same is dismissed. 10. However, it is made clear that this order shall not preclude the applicant from availing the remedies which are available to him as per law. Order Date :- 7.7.2025 Vivek Kr. Digitally signed by :- VIVEK KUMAR High Court of Judicature at Allahabad