HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 35511 of 2025 Court No. - 89 HON'BLE JITENDRA KUMAR SINHA, J. 1. Shri Sanjay Vikram Singh along with Shri Parth Shama, Advocates have filed Vakalatnama on behalf of opposite party no.2, which is taken on record. 2. Heard Shri Mrityunjay Dwivedi, learned counsel for the applicants, Shri Sanjay Vikram Singh along with Shri Parth Shama, learned counsel for the opposite party no.2 and Shri B.P.Maurya, learned AGA for the State. 3. The present application u/s 528 of BNSS has been filed with prayer to quash the entire proceedings of Case No. 278 of 2024, arising out of Case Crime No.87 of 2024, under Sections 326A, 302, 504, 506 of IPC, P.S. Hasayan, District Hathras as well as cognizance/summoning order dated 20.08.2025, pending in the Court of learned Chief Judicial Magistrate, Hathras. 4. It is contended by learned counsel for the applicants that the present prosecution is an abuse of the process of the Court. It is further contended that no offence under Section 302 IPC is made out against the applicants. It is also submitted that the police submitted final report against the applicants and initially, the learned Magistrate rejected the final report and subsequently cognizance of the offence was taken, which was challenged before this Court and this Court vide order dated 15.05.2025 passed in Application U/s 528 BNSS No.5595 of 2025 (Sunny @ Sunil Kumar and 3 others Vs. State of U.P. and another) set aside the above order and remanded the matter for fresh decision by the learned Magistrate. 5. It is further submitted that the learned Magistrate, on remand, passed the Versus Counsel for Applicant(s) : Mrityunjay Dwivedi Counsel for Opposite Party(s) : G.A. Sunny @ Sunil Kumar And 2 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) order impugned without going into the postmortem report and simply relying on the inquest report. It is further submitted that as per postmortem report, the cause of death could not be ascertained and viscera was preserved and in the Chemical Analysis report of viscera, aluminium phosphide has been found in the body of the deceased. It is also submitted that there is no evidence during investigation that the accused persons administered aluminium phosphide to the deceased. It is further submitted that in view of the above, there is no evidence against applicants for the offence and the order of taking cognizance of the offence under Section 302 IPC and other Sections is perverse. 6. It has also been argued by learned counsel for the applicants that no burn clothes were found by the Investigating Officer and in the medico legal opinion of the Forensic Science Laboratory, it has come that in all probability, the death has been caused by aluminium phosphide by self consumption of the deceased. 7. On the other hand, learned counsel for the opposite party no.2 submits that the eye witness Kushagra has stated in his statement under Section 180 BNSS that the applicants had inflicted injuries on the person of the deceased by sharp-edged weapon and they had also thrown acid on him. He further submits that the eye witness account is clearly to the effect that the offence has been committed by the applicants. It is also submitted that at the stage of taking cognizance, detailed analysis of the evidence and material collected during investigation is not permissible and learned Magistrate has rightly taken cognizance of the offence by not agreeing with final report submitted by the Investigating Officer. 8. Learned AGA submits that the postmortem shows many injuries on the person of the deceased and the injuries caused by acid burn are also found. He has supported the order impugned and submits that the learned Magistrate has rightly taken cognizance and at this stage mini trial is not permissible. 9. The first information report was registered under Sections 302, 326-A, 504, 506 IPC against the applicants for causing the murder of Gaurv Maheshwari. After investigation, the police submitted final report. The postmortem report of the deceased shows that the cause of death could not be ascertained and viscera was preserved. The eye witness Kushagra has stated before Investigating Officer under Section 180 BNSS that all the three applicants had surrounded the victim and had thrown acid on him as well as they inflicted several wounds on him by sharp-edged weapons. The NA528 No. 35511 of 2025 2 postmortem report of the deceased also finds 9 injuries on the person of the deceased, though, the cause of death could not be ascertained and viscera was preserved. In the viscera report, aluminium phosphide was found in the stomach of the deceased. 10. It is well settled that at the stage of taking cognizance, detailed analysis of the evidence and material collected during investigation is not permissible and learned Magistrate has rightly taken cognizance of the offence. The grievance of the applicants is that the offence under Section 302 IPC is not made out from the material collected during investigation. This grievance can be raised by filing discharge application. 11. On perusal of the entire material available on record, there is no abuse of the process of the Court by order impugned. 12. In view of the above, the application U/s 528 BNSS lacks merit and is liable to be dismissed. 13. Accordingly, the application U/s 528 BNSS is dismissed. However, the applicants shall be at liberty to raise their grievance by filing discharge application before the trial Court. September 23, 2025 RKM NA528 No. 35511 of 2025 3 (Jitendra Kumar Sinha,J.) Digitally signed by :- RAJESH KUMAR MAURYA High Court of Judicature at Allahabad