The Allahabad High Court has reaffirmed the narrow scope of inherent powers under Section 528 of the Bhartiya Nyay Sanhita (BNSS) to quash criminal proceedings at the pre-trial stage. In a clear directive to lower courts and litigants, the Court held that allegations disclosing a prima facie offence - particularly involving a minor victim - cannot be set aside merely on the basis of disputed facts or defence pleas advanced at the summoning stage.
Background & Facts
The Dispute
The present application under Section 528 BNSS seeks to quash Complaint Case No. 173/2025, titled Smt. Dolly vs. Santosh Kumar & others, registered at Police Station Aata, District Jalaun. The complaint alleges that the minor daughter of the complainant, suffering from illness, was subjected to sexual violence and physical assault by six accused persons, including village Tantriks and associates, during an alleged exorcism ritual on 20.11.2025.
Key Facts
- The complainant, Smt. Dolly, approached applicant No. 1 (a Tantrik) for spiritual intervention after her daughter’s illness failed to improve
- On 20.11.2025, applicant Nos. 1, 2, and 3 arrived at the complainant’s residence, followed later by applicant Nos. 4, 5, and 6
- The complaint alleges that all six accused committed rape and caused physical injuries to the minor victim
- The complaint invokes Sections 333, 115(2), 351(2), 70(2) and 70(1) of the Bhartiya Nyay Sanhita, 2023, and Sections 7 and 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012
- The complainant’s statement under Sections 223 and 224 BNSS was recorded
- A medical examination report was conducted and submitted to the court
- An initial FIR was filed by the accused against the complainant and witnesses, which the applicants claim was retaliatory
Procedural History
- 20.11.2025: Alleged incident occurred at the complainant’s residence in Village Aata, District Jalaun
- Late November 2025: Complaint filed before the Judicial Magistrate First Class, Jalaun
- December 2025: Magistrate issued notice to accused under Section 223 proviso BNSS, granting opportunity to file objections
- January 2026: Accused filed written objections challenging the complaint’s veracity and alleging mala fide
- February 2026: Magistrate issued summoning orders against all six applicants, holding prima facie case made out
- 15.03.2026: Application under Section 528 BNSS filed before the Allahabad High Court seeking quashing of proceedings
- 04.05.2026: Hearing concluded before Hon’ble Justice Deepak Verma
The Parties' Positions
The applicants (Nos. 1 - 6) contend:
- They are innocent and falsely implicated due to prior enmity
- The complaint is retaliatory, filed after they lodged an FIR against the complainant and witnesses
- The medical report does not corroborate the complainant’s claim of knife injuries
- No offence under the invoked sections is made out
- Summoning order was passed without judicial application of mind
The State and respondent No. 2 (the complainant) contend:
- The victim is a minor, and the allegations are serious and specific
- The medical report supports the prosecution’s version
- The victim’s statement under Sections 223 and 224 BNSS is consistent and credible
- The allegations, on their face, disclose offences under BNSS and POCSO Act
- The Magistrate correctly applied the prima facie test at the summoning stage
Relief Sought
The applicants seek quashing of the entire criminal proceedings, including summoning orders, against all six accused persons under Section 528 BNSS.
The Legal Issue
Can a criminal proceeding be quashed under Section 528 BNSS at the pre-trial stage when the complaint, on its face, discloses a prima facie offence against a minor, even if the accused raise factual disputes and allegations of mala fide?
Arguments Presented
For the Appellant/Petitioner
Counsel for the applicants relied on the principle that Section 528 BNSS is an extraordinary remedy to be invoked only where the allegations, even if accepted at face value, do not constitute any offence. They argued that the medical report contradicts the complainant’s claim of knife injuries, rendering the complaint unreliable. They further contended that the complaint was filed with mala fide intent to retaliate for an earlier FIR filed by the accused, and that the Magistrate failed to apply judicial mind before issuing summons. Reliance was placed on State of Haryana v. Bhajan Lal and R.P. Kapur v. State of Punjab to argue that the proceedings are an abuse of process.
For the Respondent/State
The State and respondent countered that the complaint, supported by the victim’s statement under BNSS and the medical report, prima facie discloses offences under Sections 333, 115(2), 351(2), 70(1)/(2) of BNSS and Sections 7 and 8 of the POCSO Act. They emphasized that the victim’s age triggers heightened protection under the POCSO Act and that the Magistrate correctly discharged his duty under Section 223 proviso by considering objections before issuing summons. The State argued that factual disputes regarding motive, medical contradictions, and credibility are matters for trial, not for quashing at the pre-trial stage.
The Court's Analysis
The Court undertook a structured review of the legal framework governing quashing under Section 528 BNSS, drawing upon the Supreme Court’s settled jurisprudence. It emphasized that the power under Section 528 BNSS is not a substitute for trial and must be exercised sparingly.
"The power under Section 528 BNSS at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused."
The Court observed that the complaint, even on its face, alleges sexual assault on a minor during a ritualistic setting, with multiple accused present and injuries sustained. The Magistrate had afforded the accused an opportunity to file objections under Section 223 proviso BNSS and had independently evaluated the complaint and supporting materials before issuing summons. The medical report, though not fully corroborating every detail, did not negate the core allegations of sexual violence and physical assault.
The Court held that the applicants’ contentions regarding mala fide, prior FIR, and medical contradictions are factual disputes that must be resolved at trial. The Court reiterated that at the stage of summoning, the Magistrate is not required to conduct a mini-trial or assess the credibility of witnesses. The threshold is whether, on a bare perusal of the complaint and accompanying materials, a prima facie case is disclosed.
The Court further noted that the invocation of POCSO Act provisions, which carry mandatory and stringent procedural safeguards, further reinforces the need to allow the trial to proceed. The allegations, if proven, fall squarely within the ambit of Sections 7 and 8 of the POCSO Act, which criminalize sexual assault on children.
The Court declined to interfere with the Magistrate’s order, citing Bhajan Lal, R.P. Kapur, Manik B. v. Kadapala Sreyes Reddy, and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq as binding precedents.
The Verdict
The application under Section 528 BNSS was dismissed. The Court held that the complaint, on its face, discloses a prima facie case under the Bhartiya Nyay Sanhita, 2023 and the POCSO Act, 2012. The summoning order dated February 2026 is upheld. The trial shall proceed in accordance with law. No costs were awarded.
What This Means For Similar Cases
Prima Facie Disclosure Is Sufficient at Summoning Stage
- Practitioners must not file Section 528 BNSS applications merely to challenge the credibility of complainants or witnesses at the pre-trial stage
- If the complaint, even without corroboration, alleges acts constituting an offence under BNSS or POCSO, the court must allow the trial to proceed
- Factual contradictions, including medical report discrepancies, are not grounds for quashing unless they completely negate the offence
POCSO Cases Are Given Heightened Protection
- Courts must be especially cautious in quashing proceedings involving minor victims under POCSO Act
- Allegations of sexual assault on children, even if contested, trigger mandatory trial obligations
- The burden shifts to the accused to prove innocence at trial, not to derail proceedings at the summoning stage
Judicial Discretion Must Be Exercise with Restraint
- High Courts must resist the temptation to act as trial courts at the pre-trial stage
- Section 528 BNSS is not a tool for early acquittal or evidentiary evaluation
- The Magistrate’s application of mind, even if minimal, is sufficient to uphold summoning orders
