FIR Can't Be Quashed U/S 528 BNSS If Chargesheet & Cognizance Order Not Placed On Record : Allahabad High Court

A Bench of Justice Jitendra Kumar Sinha held that a plea under Section 528 BNSS is not maintainable if the applicant challenges only the FIR without placing the charge sheet and the order of cognizance on record.

The Court held so while relying on the Supreme Court's recent judgment in the case of Pradnya Pranjal Kulkarni vs. State Of Maharashtra & Anr. 2025 LiveLaw (SC) 875.

In this case, the Top Court held that FIRs or charge-sheets may be quashed under Article 226 before cognizance is taken, but once cognizance is taken, the remedy lies under Section 528 BNSS (S. 482 CrPC) to challenge both the FIR/charge-sheet and even the cognizance order, if duly pleaded.

Briefly put, the applicant (Vishwa Bandhu) approached the High Court to quash an FIR alleging offences under Sections 420, 467, 468, and 471 of the IPC.

The primary ground for the challenge was that a second FIR on the same set of facts constitutes an abuse of the process of law as per the Supreme Court's judgment in T.T. Antony vs. State of Kerala.

However, the State raised a preliminary objection regarding the maintainability of the application. The State argued that at the stage of investigation, the remedy lies in filing a Writ Petition under Article 226 of the Constitution, not an application under Section 528 BNSS (formerly Section 482 CrPC).

Upholding this objection, Justice Sinha relied on the Supreme Court's recent verdict in Pradnya case and interpreted this judgment to establish a clear distinction between the stages of judicial intervention.

The Court observed:

"From perusal of the prayers so made in the present application, it is clear that the applicant has simply sought for quashing the FIR and he has not placed the chargesheet as well as the cognizance taken on the chargesheet by the competent Court. Thus, in view of the judgement of Hon'ble Apex Court in Pradnya Pranjal Kulkarni (supra), since the chargesheet and the cognizance has not been placed on record, FIR cannot be quashed by invoking the provisions of Section 528 BNSS (old section 482 CrPC). Thus, in view of the above, present application is not maintainable".

Thus, the petition was dismissed as being non-maintainable for the reason that chargesheet and cognizance order were not placed on record.

[Editorial Note]

It is interesting to note that in Pradnya case, the Supreme Court did not express any opinion as to whether a petitions under Section 482 CrPC or Section 528 BNSS would be maintainable just for the quashing of FIR (before chargesheet stage).

The SC merely distinguished the Neeta Singh case. The SC clarified that the "non-maintainability" rule of Neeta Singh applies only to Article 226 petitions where statutory remedies (like 482/528) weren't invoked.

The Top Court held that a Section 528 petition remains maintainable even after a chargesheet is filed or cognizance is taken, provided the petitioner suitably amends the pleadings to challenge the cognizance order. This effectively means that the mere filing of a police report does not automatically close the door on the High Court's inherent power to quash proceedings.

What makes Allahabad HC's order more interesting is the fact that till date no charge sheet has been filed in the case before the HC. Since no charge sheet existed, the applicant (Vishwa Bandhu) could not place a cognizance order or chargesheet on record.

Our readers may note that in many recent judgments delivered by the Supreme Court, it has been held that remedy under 482 CrPC/528 BNSS is available even at the nascent stage of the investigation. In the case of Imran Pratapgadhi v. State of Gujarat 2025 LiveLaw (SC) 362, it has been held thus:

"There is no absolute rule that when the investigation is at a nascent stage, the High Court cannot exercise its jurisdiction to quash an offence by exercising its jurisdiction under Article 226 of the Constitution of India or under Section 482 of the CrPC equivalent to Section 528 of the BNSS". [emphasis supplied]

It may further be noted that in Abhishek Mishra vs State Of Uttar Pradesh & Ors., the Top Court earlier this year held that merely filing of charge-sheet is not a ground for refusal to exercise jurisdiction under Section 482 Cr.P.C.

"Even after filing of the charge-sheet, the High Court is expected to take into consideration whether a prima facie case is made out or not", the Court had said.

It may also be noted that while challenging the maintainability of the present plea in the HC, the State relied on 1989 Full Bench decision of the Allahabad High Court in Ram Lal Yadav vs. State of UP, which held that Section 482 CrPC (now Section 528 BNSS) applies only to judicial proceedings after cognizance is taken and not to police investigations.

Interestingly, the ratio of this very order of 1989 Case was doubted earlier this year by Justice Arun Kumar Singh Deshwal of the Allahabad High Court as he termed the Ram Lal Yadav judgment 'obsolete' in light of subsequent Supreme Court decisions.

Justice Deshwal had noted:

"This court respectfully acknowledges that the legal principles established in the Full Bench decision of Ramlal Yadav may no longer be applicable due to recent developments in the law...Nevertheless, in the spirit of judicial discipline...the court is inclined to refer this matter to a Larger Bench comprising nine judges." [emphasis supplied]