How Senior Advocates File Section 528 BNSS Quashing Petitions | EduLaw
EduLaw EditorialAdvocate PlaybookA practical guide to drafting and arguing quashing petitions under Section 528 BNSS — Bhajan Lal categories, the September 2025 four-step test, sterling material, interim relief and the limits of inherent jurisdiction.
EduLaw India’s Legal Intelligence Platform Home / Blog / Advocate Playbook Advocate Playbook 068 How Senior Advocates File Section 528 BNSS Quashing Petitions Inherent jurisdiction is not a memo of facts — it is a jurisdictional plea tied to Bhajan Lal architecture and the September 2025 four-step test. Criminal Practice • Inherent Jurisdiction • Quashing • Updated August 2026 8 Minute Read Most quashing petitions fail before the first hearing, on the drafting table. The junior receives the brief, reads the FIR, and writes twenty-two paragraphs explaining why the complainant is lying: the money was actually repaid, the witnesses are relatives, the allegations are exaggerated. It reads like a written statement in a civil suit. When it is listed, the Bench asks a single question — “These are all matters for trial, are they not?” — and the petition is over. Senior counsel start from a different premise. A petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 does not ask the High Court to decide who is telling the truth. It asks the Court to hold that, even accepting the accusation as it stands, allowing the proceeding to continue would be an abuse of process. That is a jurisdictional proposition, not a factual one, and it must be pleaded, structured and argued as such. Everything in this playbook follows from that distinction. The Real Objective You are not proving innocence. You are demonstrating that no legally sustainable prosecution exists on the material available — and that the continuation of the proceeding would serve process rather than justice. Illustrative Example A private complaint alleging cheating is filed in 2026 in respect of a business transaction that concluded in 2021. The parties executed a written settlement in 2022, and the complainant signed a no-dues acknowledgement recording that nothing further was payable. No explanation is offered for the four-year delay in approaching the Magistrate. The Magistrate examines the complainant and issues summons. The accused approaches the High Court under Section 528 BNSS. This scenario is entirely fictional. It is used only to demonstrate technique and is not a real case, reported judgment or summary of any decided matter. A word on the governing framework before we begin. For proceedings under the new criminal laws, the inherent power is preserved by Section 528 of the BNSS , worded in substantially the same terms as Section 482 of the Code of Criminal Procedure, 1973. Matters pending immediately before the BNSS came into force may continue to be governed by the old Code under the repeal-and-savings provision in Section 531 of the BNSS. Check the date of institution on your file, cite the provision that actually applies, and never mix the two numbering systems in one memo of parties. 1. Diagnose the Ground Before You Draft a Word Before drafting, decide which single defect you are asking the Court to act upon. Broadly, quashing grounds fall into a few families: the allegations, accepted at face value, do not disclose the ingredients of the offence charged; the dispute is civil or contractual in substance and has been given a criminal colour; the prosecution is barred by law or by a prior order; the proceeding is manifestly mala fide, instituted to wreak vengeance; or there is a fundamental procedural illegality in the cognizance or summoning order. A petition that pleads all five is a petition that pleads none. Choose the strongest, plead it as the primary ground, and let the rest sit as supporting circumstances. In the illustrative example, the primary ground is that the complaint, on its own showing and read with the unimpeached settlement, discloses a concluded civil transaction rather than the ingredients of cheating. The four-year delay and the absence of any explanation are supporting circumstances that colour the motive; they are not the case itself. 2. Choose the Right Provision and the Right Stage Inherent jurisdiction is not the only door, and it is not always the correct one. Where the challenge is to the registration of an FIR itself on constitutional grounds, Article 226 may be invoked, often in combination with Section 528. Where the grievance is a defect in the summoning order, the appropriate relief may be setting aside that order rather than quashing the entire complaint. Where the real complaint is that a Magistrate directed investigation without following the requirements now built into Section 175(3) of the BNSS, that is a discrete challenge with its own contours. Senior’s Preparation Note Stage of Proceeding What the Petition Must Show FIR registered, investigation ongoing That the allegations disclose no offence at all, or that the registration is manifestly mala fide; investigation is otherwise a statutory function Police report filed under Section 193 BNSS That the collected material, taken as a whole, cannot sustain the ingredients alleged Cognizance taken, process issued Absence of ingredients, a legal bar, or a defect going to the root of the cognizance or summoning order Charge framed, trial in progress A significantly higher threshold; delay in approaching the Court will itself be held against the petitioner Timing matters as much as ground. There is no limitation for a petition under Section 528, but a petitioner who waits until three prosecution witnesses have been examined invites the answer that the trial should simply be allowed to conclude. 3. Anchor the Petition in the Bhajan Lal Architecture The seven categories enumerated in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 remain the organising framework of quashing law in India. They are illustrative rather than exhaustive, and the Supreme Court expressly cautioned that the power is to be exercised sparingly and in the rarest of cases. That caution is part of the doctrine and should be acknowledged in your petition rather than ignored. The practical use of Bhajan Lal is structural. Identify which category your case actually falls within, plead it by its substance, and then demonstrate the fit paragraph by paragraph. If you are in the first category — allegations which, even if taken at their highest, do not make out the offence — then you must set out the statutory ingredients of the offence in one paragraph and the corresponding averments of the complaint in the next, and show the gap. A petition that names the case without doing that work has cited an authority; it has not used one. Drafting Mistake Do not reproduce all seven categories as a block quotation and then assert that “the present case squarely falls within categories 1, 3, 5 and 7.” Benches read that formulation as an admission that no single category fits cleanly. 4. Run the Four-Step Test Before Filing In Pradeep Kumar Kesarwani v. State of Uttar Pradesh , decided on 2 September 2025, the Supreme Court set out a sequence of four questions that should ordinarily determine a prayer for quashing. Paraphrased, they ask: whether the material relied upon by the accused is sound, reasonable and indubitable — of sterling and impeccable quality; whether that material would rule out the assertions in the accusation; whether it has not been, or cannot justifiably be, refuted by the prosecution or complainant; and whether continuing the trial would amount to an abuse of process and would not serve the ends of justice. The Court indicated that where all four are answered in the affirmative, the High Court should be persuaded to quash. Apply the Test to Your Own Brief Is the material sterling? Registered instruments, admitted documents, official records and orders of competent authorities qualify. Self-serving affidavits and unproved WhatsApp exchanges usually do not. Does it rule out the accusation? The document must displace the accusation, not merely compete with it. Ask whether a reasonable person reading it would condemn the factual basis of the complaint as false. Is it unrefuted or irrefutable? If the complainant can plausibly dispute execution, genuineness or context, the ground belongs to the trial court. Would continuation abuse the process? Bring together delay, motive, prior civil proceedings and the improbability of conviction. This is where the petition earns its conclusion. In the illustrative example, the no-dues acknowledgement signed by the complainant is the pivot. If its execution is admitted or is beyond serious dispute, it satisfies the first three steps; the unexplained four-year delay then carries the fourth. If the complainant disputes his signature, the petition is no longer a quashing case at all. 5. Assemble the Annexures Like an Evidentiary Record The strength of a quashing petition lies in its paper book. Annex the FIR or complaint in full, the police report where filed, the cognizance and summoning orders, and every document that establishes the true character of the transaction — agreements, receipts, settlement deeds, bank statements, prior civil pleadings, orders of tribunals or regulators. Give the Court a chronology on a single page. A well-built chronology often does more persuasive work than the grounds themselves. Be disciplined about what you annex. Material that would itself require proof at trial — unauthenticated screenshots, printouts of electronic records without the certification required under the Bharatiya Sakshya Adhiniyam, 2023, or the petitioner’s own version of a disputed conversation — weakens the petition by inviting the response that facts are in dispute. Every annexure should be one that the other side cannot comfortably deny. 6. Draft the Prayer and the Interim Application With Restraint The prayer must be capable of being granted as drafted. Identify the FIR by number, police station, year and the sections invoked; identify the complaint case and the order sought to be set aside with its date. An over-broad prayer to quash “all consequential proceedings arising therefrom” without particulars is routinely trimmed by the Registry or the Bench. Interim relief demands even more care. In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401 , the Supreme Court disapproved of the practice of passing omnibus interim orders directing that “no coercive steps” be taken, particularly without reasons and while declining to interfere with the investigation. Ask for what you actually need — protection from arrest pending notice, or a stay of further proceedings before the Magistrate — and support the request with reasons on the face of the application. Oral Opening — The Structure That Holds “My Lord, this is a complaint case of 2026 arising out of a transaction that closed in 2021.” “The parties settled in writing in 2022; the acknowledgement is at page 84 and is signed by the complainant.” “The complaint does not deny that document. It does not refer to it at all.” “No explanation is offered anywhere for the four-year delay.” “On these admitted materials, continuation of the proceeding would be an abuse of process.” 7. Handle Settlement and Procedural Grounds Correctly Where the matter has been compromised, remember that quashing on settlement is not compounding. The framework in Gian Singh v. State of Punjab, (2012) 10 SCC 303 distinguishes disputes that are overwhelmingly private or civil in flavour, where a genuine settlement may justify closure, from heinous offences and crimes with a serious impact on society, where the willingness of the complainant is not determinative. Annex the settlement, secure the presence or affidavit of the complainant, and address the character of the offence squarely instead of hoping it will not be raised. Procedural grounds are useful but limited. Where cognizance was taken on a complaint without giving the accused the opportunity of being heard contemplated by the proviso to Section 223(1) of the BNSS, the usual consequence is that the summoning order is set aside and the matter remitted for compliance — not that the complaint disappears. Plead such grounds as reinforcement of a substantive plea, and tell the Court plainly what relief follows from each. Overstating a procedural point costs you credibility on the ground that actually matters. Seven Mistakes Young Advocates Make Drafting a defence, not a jurisdictional plea. Paragraphs beginning “it is submitted that the complainant is falsely implicating” belong to the trial court. Frame the plea around ingredients, legal bars and abuse of process. Pleading every ground available. A scattered petition signals weakness. Lead with one ground, support it with two, and drop the rest. Citing Bhajan Lal without mapping it. Naming the seven categories is not argument. Show the statutory ingredient and the missing averment side by side. Relying on disputed documents. If the complainant can credibly deny the annexure, the four-step test fails at the third question and the Bench will say so. Asking for omnibus interim protection. A vague “no coercive steps” prayer attracts the criticism recorded in Neeharika. Ask narrowly and give reasons. Ignoring the stage of the proceeding. The threshold at the FIR stage differs from the threshold after charge. A petition that does not acknowledge its own stage looks unprepared. Filing late and offering no explanation. Delay is not a bar, but unexplained delay after participating in the trial invites dismissal on that ground alone. The Quashing Petition Sequence Diagnose → Forum → Categorise → Assemble → Test → Draft → Interim → Argue 1. Diagnose Identify the single defect — missing ingredients, civil dispute, legal bar, mala fides or procedural illegality. 2. Forum Decide between Section 528 BNSS, Article 226, or a narrower challenge to the summoning order. 3. Categorise Fix the Bhajan Lal category and plead the fit by substance rather than by quotation. 4. Assemble Build a paper book of documents the other side cannot deny, with a one-page chronology. 5. Test Run the September 2025 four-step test on your own brief before filing, and be honest about step three. 6. Draft Write a prayer capable of being granted as worded, with the FIR and orders precisely identified. 7. Interim Seek narrow, reasoned protection. Avoid the omnibus formulations that attract judicial criticism. 8. Argue Open with the chronology, take the Bench to the decisive document, and stop once the point is made. A quashing petition succeeds when the Court can grant it in three lines. If your relief requires the Bench to resolve a factual dispute first, you have filed in the wrong forum. Conclusion Inherent jurisdiction under Section 528 BNSS is a power of restraint exercised by the High Court over the criminal process, not a shortcut to acquittal. The doctrine has been deliberately fenced — sparingly, in the rarest of cases, without conducting a mini-trial — and the four-step formulation of September 2025 makes those fences explicit by asking whether the petitioner’s material is genuinely of sterling quality and genuinely unanswerable. The practical consequence for a junior is straightforward. Spend your preparation on the two or three documents that cannot be disputed, arrange them against the statutory ingredients of the offence alleged, and let the chronology carry the inference of abuse. The advocate’s task is to show the High Court that no legally sustainable prosecution exists on the material as it stands, and to make that demonstration short enough to be recorded in the order. Build a Stronger Courtroom Practice Continue Learning With the Advocate Playbook Explore practical guides on cross-examination, bail, drafting, case preparation, written submissions and courtroom strategy—built for young Indian advocates. Explore the Advocate Playbook Bundle Frequently Asked Questions Is Section 528 BNSS the same as Section 482 CrPC? Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the successor provision and is worded in substantially the same terms: nothing in the Sanhita limits the inherent power of the High Court to give effect to its orders, prevent abuse of process or secure the ends of justice. Precedent developed under Section 482 of the Code of Criminal Procedure, 1973 therefore continues to guide its exercise, but the correct section must be cited according to the regime governing the proceeding. Can an FIR be quashed before the chargesheet is filed? Yes, but the threshold is high. Courts have repeatedly cautioned that investigation is a statutory function and should ordinarily be allowed to proceed. Quashing at the FIR stage is reserved for cases where the allegations, taken at face value, disclose no offence, or where the proceeding is manifestly mala fide. Where investigation may yield material, the High Court will usually decline to intervene at that stage. Can the High Court appreciate defence evidence in a quashing petition? Not in the manner of a trial court. The High Court does not conduct a mini-trial or weigh competing versions. It may, however, consider material of sterling and impeccable quality that is not seriously disputed and that decisively displaces the accusation. Documents requiring proof, oral rebuttal or credibility assessment belong to the trial and cannot form the basis of quashing. Can proceedings be quashed on the basis of a compromise? In appropriate cases, yes. Quashing on settlement is distinct from compounding and rests on the inherent power to secure the ends of justice. The distinction drawn in Gian Singh remains the working test: predominantly private or civil-flavoured disputes may be closed on genuine settlement, while heinous offences and crimes with a serious impact on society ordinarily cannot, regardless of the parties’ willingness. Does a defective pre-cognizance hearing under Section 223 BNSS help in quashing? It can, where the proviso applies. Section 223(1) of the BNSS requires that the accused be given an opportunity of being heard before cognizance is taken on a complaint. Where that opportunity was denied, the usual outcome is that the summoning order is set aside and the matter remitted for compliance, rather than the complaint being extinguished. Treat it as a procedural ground supporting the petition, not as a substitute for a substantive plea. Statutory Sources The bare text of the Bharatiya Nagarik Suraksha Sanhita, 2023 is available on India Code. Judgments of the Supreme Court of India are available on the Supreme Court’s official judgment portal . This article is intended for legal education and professional discussion. It does not constitute legal advice. Statutory provisions, High Court rules and binding precedents applicable to the particular proceeding must be independently verified. EduLaw • Advocate Playbook 068 • Updated August 2026