Allahabad High Court
Ajay Rai vs State Of U.P. And Another on 25 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:174335
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 37793 of 2025
Ajay Rai
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Praveen Kumar Singh, Syed Imran Ibrahim
Counsel for Opposite Party(s)
:
G.A.
Court No. - 82
HON'BLE SAMEER JAIN, J.
1. The instant application is being heard and disposed off finally with the consent of both the parties without exchange of pleadings.
2. Heard Sri Praveen Kumar Singh, learned counsel for the applicant and Sri Rupak Chaubey, learned AGA for the State.
3. By way of instant application following prayer has been made:-
"It is therefore, Most respectfully prayed that this Hon'ble court may graciously be pleased to allow the present application and quash the impugned summoning order dated 12.07.2017 and the charge sheet dated 05.03.2017 as well as the entire proceedings of Case No. 2331 of 2017 (State Vs. Ajay Rai) arising out of Case Crime No. 96 of 2017 u/s 171H and 188 IPC, Police Station Baragaon, District Varanasi, pending in the Court of ACJM-4, Varanasi.
This Hon'ble Court may further be pleased to stay the further proceedings of Case No. 2331 of 2017 (State Vs. Ajay Rai) arising out of Case Crime No. 96 of 2017 u/s 171H and 188 IPC, Police Station Baragaon, District Varanasi, pending in the Court of ACJM-4, Varanasi otherwise the applicant would suffer irreparable loss and injury."
4. Learned counsel for the applicant submitted that FIR of the present case was lodged against the applicant and one another on 22.02.2017 for the offences punishable under Sections 188 and 171-H IPC and after investigation charge sheet has also been filed against the applicant under Sections 188 and 171-H IPC and after taking cognizance on the police report submitted under Section 173(2) Cr.P.C. court concerned proceeded with the matter and at present trial of the case is pending before the trial court as State case.
5. He further submitted that as per provisions of Section 195(1)(a)(i) Cr.P.C., on the police report cognizance cannot be taken for the offence under Section 188 IPC. He further submitted that as far as offence under Section 171-H IPC is concerned, admittedly there is no allegation that applicant incurred any illegal payment in connection of an election, therefore, prima facie no offence under Section 171H IPC is made out. He next submits, even offence under Section 171H IPC is non-cognizable and therefore, learned court could not even take cognizance on police report even for offence under Section 171H IPC.
6. He further submitted that however, till date, out of total 7 prosecution witnesses of the charge sheet, 5 witnesses have been examined but proceeding pending against the applicant is bad as court concerned could not even take the cognizance on the police report submitted under Section 173(2) Cr.P.C., therefore, at this stage also this Court can exercise its power under Section 528 BNSS to secure the ends of justice and to prevent abuse of process of law.
7. He further submitted that therefore, entire proceeding pending against the applicant is liable to be quashed.
8. Per contra, learned AGA however, opposed the prayer but fairly conceded that applicant is facing trial for the offences under Sections 188 and 171-H IPC on the basis of police report submitted under Section 173(2) Cr.P.C. and as per Section 195(1)(a)(i) Cr.P.C., on the police report cognizance cannot be taken for the offence under Section 188 IPC. He further could not dispute, to constitute an offence under Section 171H IPC it is necessary that accused should incurred expenses in connection of an election without any authorization of a candidate and there is no such allegation in the instant matter against the applicant, however, he submitted, as trial of the case has been commenced and out of seven witnesses five have been examined therefore, at this stage it is not desirable to quash the proceedings pending against applicant.
9. I have heard both the parties and perused the record of the case.
10. From the record, it reflects, FIR was lodged against the applicant and one another under Sections 188 and 171-H IPC and after investigation, charge sheet has also been filed against the applicant for the offences under Sections 188 and 171-H IPC.
11. Record also suggests that after submission of charge sheet under Section 173(2) Cr.P.C. court concerned took the cognizance and proceeded with the matter as State case and therefore applicant is facing trial of the present case for offence punishable under Section 188 and 171H IPC.
12. According to Section 195(1)(a)(i) Cr.P.C., court cannot take cognizance on the police report submitted under Section 173(2) Cr.P.C. for the offence under Section 188 IPC and as offence under Section 171-H IPC is non-cognizable, therefore, even court concerned can not take cognizance for this offence on the police report submitted under Section 173(2) Cr.P.C., therefore, it reflects, cognizance order dated 12.07.2017 is bad and proceedings of the case as State case initiated on the basis of police report submitted under Section 173(2) Cr.P.C. is also bad.
13. Further, there is no allegation that applicant incurred expenses in connection with an election without consent or authorization of a candidate, therefore, even prima facie no offence under Section 171H IPC is made out as to constitute an offence under Section 171H IPC it is necessary that an accused must incurred expenses in connection of an election.
14. Further, however, trial of the case has been commenced and out of total seven witnesses five witnesses have been examined and ordinarily at this stage this Court should not exercise its extraordinary power under Section 528 BNSS but to secure ends of justice and to prevent abuse of process of law this Court even at this stage can exercise its power under Section 528 BNSS.
15. As cognizance order passed in the present matter and proceedings pending against the applicant appears to be illegal, therefore, this Court should exercise its inherent power under Section 528 BNSS in the present matter to secure the ends of justice and to prevent the abuse of process of law.
16. Therefore, from the discussion made above, cognizance order dated 12.07.2017 passed by the court concerned and proceeding pending against the applicant are illegal and are accordingly quashed.
17. The instant application stands allowed.
(Sameer Jain,J.) September 25, 2025 KK Patel