HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 33494 of 2026 Court No. - 74 HON'BLE DEEPAK VERMA, J. 1. Supplementary affidavit filed on behalf of the applicants, is taken on record. 2. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record. 3. The present application u/s 528 BNSS has been filed with prayer to quash the entire proceeding as well as summoning order dated 03.07.2024 passed by Additional Chief Judicial Magistrate-I, Mirzapur, in Complaint Case No. 0187 of 2024, (Chaniya Devi Vs. Anupama and others), Under Section 406, 420 of I.P.C., Police Station Kotwali Dehat, District Mirzapur and consequential proceeding of this case. 4. Learned counsel for the applicants submits that learned Magistrate has issued summon u/s 420 and 406 I.P.C. against the applicants. Learned court below has passed the cognizance order/summoning order without application of judicial mind. It is next submitted that proceedings under Sections 420 and 406 I.P.C. cannot run jointly in view of the judgment of Apex Court in Delhi Race Club (1940) Ltd. vs. The State of Uttar Pradesh & Anr., 2024 SCC OnLine SC 2248, the Apex Court has held in para 42 and 43, which are quoted herein below: "42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust Versus Counsel for Applicant(s) : Pramod Kumar Mishra, Suneel Kumar Counsel for Opposite Party(s) : G.A. Anupama And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police ? to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind. 43. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other." 5. Considering the argument raised by applicants' counsel and in view of judgment passed by Hon'ble The Apex Court in the case of Delhi Race Club (1940) Ltd., cognizance/summoning order dated 03.07.2024 passed by learned Magistrate is without application of judicial mind. 6. Accordingly, the impugned order dated 03.07.2024 is hereby quashed. 7. The matter is remanded back to learned Magistrate with direction that learned Magistrate shall pass an appropriate order within eight weeks from the date of production of certified copy of this order keeping in view the order of Hon'ble The Apex Court passed in the case of Delhi Race Club (1940) Ltd. vs. The State of Uttar Pradesh & Anr. 8. With aforesaid direction, the present application under Section 528 BNSS is accordingly allowed. September 8, 2026 Nisha NA528 No. 33494 of 2026 2 (Deepak Verma,J.) Digitally signed by :- nisha kumari High Court of Judicature at Allahabad