Allowed

Akhilesh Mishra @ Guddu and 5 Others v. State of U.P. and Another

Allahabad HC4 Dec 2025NA528/47345/2025

Case brief

AI extract

What is this about?

High Court quashed criminal proceedings and cognizance order as the Magistrate lacked jurisdiction. The court held that cognizance of non-cognizable offences could not be taken on a police report, was time-barred, and Section 188 IPC required a specific public servant complaint.

What did the court decide?

Quashing of entire criminal proceedings and cognizance order dated 16.01.2020 against the applicants.

Akhilesh Mishra @ Guddu and 5 Others vs State of U.P. and… — Election Law | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

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APPLICATION U/S 528 BNSS No. - 47345 of 2025

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Akhilesh Mishra @ Guddu And 5 Others

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	Versus	.....Applicant(s)
State of U.P. and Another		.....Opposite Party(s)
Counsel for Applicant(s)	:	Chandan Kumar Chaturvedi
Counsel for Opposite Party(s)	:	G.A.

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Court No. - 3

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HON'BLE VIVEK KUMAR SINGH, J.

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Heard Shri Chandan Kumar Chaturvedi, learned counsel for the applicant and Shri Mohd. Afzal, learned A.G.A. for the State respondents.

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Present application under Section 528 B.N.S.S. has been preferred for quashing the entire proceeding of Case No. 192 of 2020 (State vs. Ajay Singh and Others), arising out of Case Crime No.501 of 2017, under Section 171-H, 188 IPC and Section 127A of the Representation of the People Act, Police Station Kotwali, District Azamgarh, pending in the court of Chief Judicial Magistrate, Azamgarh as well as impugned Chargesheet 31.03.2018 and cognizance order dated 16.01.2020 issued in the abovementioned proceedings.

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It is submitted by the learned counsel for the applicants that the FIR has been lodged on false ground while the applicants have not committed any offence. The police has also submitted chargesheet on the basis of insufficient evidence against the applicants. The essential ingredients to constitute the offence are missing in the FIR as well as in the statement of witnesses. The present prosecution has been lodged with a mala fide intention. It is also submitted that cognizance, taken in the matter on the basis of chargesheet is illegal and without application of judicial mind. It is also submitted that offences alleged against the applicants are noncognizable offences and the police without taking prior permission of the court concerned, investigated the matter and submitted chargesheet in this case and the learned Magistrate has also wrongly and illegally took

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NA528 No. 47345 of 2025

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cognizance of offence vide order dated 16.01.2020 and proceeded further on the police report. it is also submitted that no cognizance can be taken under Section 188 IPC in view of Section 195 Cr.P.C. except upon a complaint in writing of the public servant concerned. Thus taking cognizance under Section 188 IPC is also without jurisdiction. It is also submitted that offences under section 171-H IPC is a non-cognizable offence as per Schedule (I) of the Cr.P.C. and offence under section 127(A) of the Representation of People Act is also a non-cognizable offence wherein maximum punishment is upto six months imprisonment or with fine.

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It is further submitted that there is no material available on record that would indicate that permission of the Magistrate was obtained prior to investigation in non-cognizable offences. The learned counsel for the applicant referred to the schedule appended with Cr.P.C. and also punishment provided for the offences alleged against the applicant. It is contended in last that the proceedings against the applicant can only be made on the basis of complaint under Chapter XV Cr.P.C.

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On the other hand, learned AGA opposed the prayer and submitted that though the offences alleged against the applicants are non-cognizable, yet there is no infirmity or illegality in the impugned order warranting interference by this Court.

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I have considered the submissions made by the learned counsel for the parties and have gone through the entire record carefully.

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As is evident in this matter that the FIR was lodged on 06.11.2017, under Section 171-H, 188 IPC and Section 127(A) of the Representation of People Act, 1950. The matter was investigated by the Investigating Officer and submitted chargesheet under the aforesaid sections on 31.03.2018. The learned Magistrate took cognizance of offence on 16.01.2020, under the aforesaid sections.

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As per Schedule, Section 171-H of the IPC is non-cognizable, bailable and punishable of fine upto rupees five hundred only. As per section 188 of the IPC the offence is cognizable, bailable and punishment upto simple imprisonment for one month or fine of rupees two hundred or both and as

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NA528 No. 47345 of 2025

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per Section 127 (A) of the Representation of People Act, the offence is non-cognizable and punishable upto imprisonment of six months or with fine, therefore, in the aforesaid Sections, maximum punishment is upto to six months imprisonment. The alleged offences had taken place on 06.11.2017 whereas the Magistrate had taken cognizance after more than two years and two months on 16.1.2020 and as per Section 468 Cr.P.C, the Magistrate cannot take cognizance after one year, if the offence is punishable with imprisonment for a term not exceeding one year, therefore, the Magistrate committed gross illegality in taking cognizance after more than two years and two months and no reason for extending the period has been assigned by him in his order dated 16.01.2020. He did not extend the period of limitation as provided under Section 473 Cr.P.C.

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Secondly, perusal of records shows that the Magistrate concerned without considering the nature of offence for which chargesheet was submitted, took cognizance on 16.01.2020. Since offences under section 171(H) IPC and 127 (A) of the Representation of People Act are noncognizable offences, cognizance would not have been taken on the chargesheet for the aforesaid offences as per provisions of Section 2(d) Cr.P.C. and Chapter XV Cr.P.C., if the cognizance was taken within time in view of Section 468 Cr.P.C. In the circumstances, this Court is of the opinion that cognizance taken vide order dated 16.01.2020, on the chargesheet submitted for the offence under Section 171-H IPC and Section 127-A of the Representation of People Act is liable to be set aside.

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So far as the Section 188 IPC is concerned, it is specially provided under Section 195(1) of the Cr.P.C. that no court shall take cognizance of any offence under section 172 to 188 except upon a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Thus, taking cognizance under Section 188 IPC is also without jurisdiction.

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As per Section 2(d) of the Cr.P.C., the opposite party no.2 could have prosecuted the applicants only on the basis of complaint case.

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In this matter, not only the FIR was registered but also the

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NA528 No. 47345 of 2025

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investigation was carried out and the chargesheet was submitted without any jurisdiction. Thus, taking cognizance under Section 188 IPC on the basis of police report is also illegal. Even more, accepting the chargesheet by the Magistrate and taking cognizance of the offence does not validate the proceedings. Even subsequent permission by the Magistrate also cannot cure the illegality. As could be seen from Section 460 of Cr.P.C., these defects of non taking permission before the Investigation in a noncognizable offence is also not curable. Though the chargesheet was filed after due investigation without prior permission of the court and that the Magistrate has accepted the chargesheet and taking cognizance it does not mean to show that permission was granted by the Magistrate to investigate such non-cognizable offence or the error committed by the Investigating Officer has been cured. Therefore, the investigation into the non-cognizable offence without written order of the Magistrate is strictly contrary to the provisions of this Section.

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In view of the above facts and circumstances of the case, the investigation done by the police in this case is without jurisdiction and based on such invalid investigation report, the cognizance taken by the learned Magistrate is also illegal and time barred in view of Section 468(2) of the Cr.P.C. The entire proceedings before the learned Magistrate is vitiated by serious incurable defects.

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Hence the present application is allowed.

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The entire proceeding of Case No. 192 of 2020 (State vs. Ajay Singh and Others), arising out of Case Crime No.501 of 2017, under Section 171-H, 188 IPC and Section 127A of the Representation of the People Act, Police Station Kotwali, District Azamgarh, pending in the court of Chief Judicial Magistrate, Azamgarh as well as impugned Chargesheet 31.03.2018 and cognizance order dated 16.01.2020 issued in the abovementioned proceedings are hereby quashed in respect of the applicants only.

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No order as to cost.

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(Vivek Kumar Singh,J.)

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December 4, 2025 Nitendra

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Digitally signed by :- NITENDRA TIWARI High Court of Judicature at Allahabad

Akhilesh Mishra @ Guddu and 5 Others v. State of U.P. and Another

Case brief

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Akhilesh Mishra @ Guddu and 5 Others v. State of U.P. and Another

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