Writ Under Article 226 or Application Under Section 528 BNSS? Choosing the Right Route to Quash an FIR in the Allahabad High Court

A person who wishes to have an FIR or a criminal case quashed by the Allahabad High Court must first choose the right door. There are two: a writ petition under Article 226 of the Constitution, and an application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the provision that replaced Section 482 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The legal test for quashing is broadly the same through either door. What differs is which door is open at which stage of the case, and in Allahabad that question has a history of its own.

This article does not repeat the grounds on which an FIR may be quashed; those are explained in our separate article on quashing under Section 528 BNSS. It addresses the earlier and very practical question: in your case, at your stage, which petition should be filed, and with which documents.

THE TWO JURISDICTIONS

Article 226 gives every High Court the constitutional power to issue writs and directions to any authority, including the police, for the enforcement of fundamental rights and for any other purpose. It is an extraordinary jurisdiction. Section 528 BNSS is different in kind. It preserves the inherent power of the High Court to make such orders as may be necessary to give effect to an order under the Sanhita, to prevent abuse of the process of any Court, or otherwise to secure the ends of justice. It is a statutory jurisdiction within the criminal procedure code, and its wording is the same as that of the old Section 482 CrPC.

The Supreme Court has long treated the two powers as available for the same purpose. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Court framed its well-known categories of cases fit for quashing as cases in which the High Court may act in the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code. More recently, in Kim Wansoo v. State of Uttar Pradesh, 2025 INSC 8, decided on 2 January 2025, the Supreme Court set aside an order of the Allahabad High Court that had declined to quash an FIR in a Criminal Misc. Writ Petition. It observed that quashing is ordinarily sought under the inherent power, but that this does not mean it cannot be done in the extraordinary jurisdiction under Article 226.

THE ALLAHABAD POSITION: THE FIR STAGE

The local rule comes from Ram Lal Yadav v. State of U.P., 1989 SCC OnLine All 73, a decision of a Full Bench of seven Judges of the Allahabad High Court. The Full Bench held that the High Court cannot interfere with the investigation of a cognizable offence in the exercise of its inherent power under Section 482 CrPC; that an FIR may be challenged under Article 226; and that the inherent power to quash is available against proceedings after a charge-sheet or complaint, not against an investigation that is still under way.

The practical result, followed in the Allahabad High Court for more than three decades, is a division by stage. While the matter is at the FIR and investigation stage, the challenge is ordinarily brought as a Criminal Misc. Writ Petition under Article 226, praying for a writ of certiorari quashing the FIR and, where justified, for a direction restraining arrest during investigation. An application under Section 528 BNSS directed only against an FIR at this stage faces the objection that it is not maintainable under Ram Lal Yadav, and the State has raised that objection in reported cases.

THE SUPREME COURT ON THE DIVIDING LINE: COGNIZANCE

In Pradnya Pranjal Kulkarni v. State of Maharashtra, decided on 3 September 2025 in SLP (Crl.) No. 13424 of 2025 by a Bench of Dipankar Datta and Prashant Kumar Mishra, JJ., the Supreme Court drew the dividing line at cognizance. At paragraph 8 of its order, the Court stated that so long as cognizance of the offence has not been taken, a writ or order to quash the FIR or charge-sheet could be issued under Article 226; but once a judicial order taking cognizance intervenes, the power under Section 528 BNSS is available to quash not only the FIR and charge-sheet but also the order taking cognizance. The Court sent the writ petition back to the High Court for fresh consideration.

The distinction has a simple basis. An order taking cognizance, or summoning the accused, is a judicial order of a criminal court. A writ under Article 226 does not ordinarily issue to set aside such an order, whereas Section 528 is the very power intended to prevent abuse of the process of a criminal court. Once a Magistrate has taken cognizance, therefore, the challenge must be framed against the cognizance or summoning order as well, and the proper vehicle is an application under Section 528 BNSS.

THE MIDDLE STAGE: CHARGE-SHEET FILED, COGNIZANCE NOT YET TAKEN

There is often an interval between the police filing a charge-sheet and the Magistrate taking cognizance of it. On the Supreme Court's reasoning in Pradnya Pranjal Kulkarni, a writ petition under Article 226 remains available during that interval, and it may seek quashing of the charge-sheet as well as the FIR. If a writ petition is already pending when the charge-sheet is filed, the filing does not by itself make the petition infructuous. In Mukesh v. State of Uttar Pradesh, arising out of SLP (Crl.) No. 12354 of 2024, a Bench of Abhay S. Oka and Augustine George Masih, JJ. set aside a one-line order of the Allahabad High Court that had dismissed a writ petition as infructuous for that reason alone, and restored the petition for hearing on merits. The Court noted that a quashing petition permits a wider challenge than a discharge application, including on the ground of abuse of process.

Where the charge-sheet is filed and cognizance is then taken while a writ petition is pending, the safer course is to seek leave to amend so as to challenge the cognizance order, or to file an application under Section 528 BNSS against the charge-sheet, the cognizance order and the entire proceedings. Which of these the Court will permit depends on the Bench and the stage reached, and the point should be considered as soon as the cognizance order is passed.

THE PENDING NINE-JUDGE REFERENCE

The Allahabad position may change. In Shashank Gupta @ Guddu v. State of U.P., (2025) 5 ILRA 1277, decided on 27 May 2025 in Application under Section 528 BNSS No. 10997 of 2025, Arun Kumar Singh Deshwal, J. referred two questions to a Bench of nine Judges: whether the law laid down in Ram Lal Yadav, that an FIR and the ensuing investigation cannot be quashed under Section 482 CrPC (corresponding to Section 528 BNSS), is still valid in the light of Bhajan Lal and M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401; and whether an FIR and its consequential investigation can be quashed under Section 528 BNSS where the conditions in paragraph 102 of Bhajan Lal and paragraph 33 of Neeharika Infrastructure are fulfilled.

As of 3 November 2026, we have not found a reported decision of the nine-Judge Bench. Until it decides, Ram Lal Yadav remains the decision of the largest Bench of the High Court on the point, and an FIR at the investigation stage is most safely challenged by a writ petition under Article 226. If the nine-Judge Bench answers the questions in favour of Section 528, an application under that provision would become available against an FIR as well, and this article will be updated.

A QUICK GUIDE BY STAGE

FIR registered, investigation in progress: a Criminal Misc. Writ Petition under Article 226, with a certified or downloaded copy of the FIR, seeking quashing of the FIR and, where justified, protection from arrest during investigation.

Charge-sheet filed, cognizance not yet taken: a writ petition under Article 226 remains available on the Supreme Court's reasoning in Pradnya Pranjal Kulkarni, and may seek quashing of the charge-sheet as well as the FIR. A pending writ petition does not become infructuous merely because a charge-sheet has been filed.

Cognizance taken, or summons or warrant issued: an application under Section 528 BNSS challenging the FIR, the charge-sheet, the cognizance or summoning order and the entire proceedings, with all of them placed on record. A challenge that omits the cognizance order risks being dismissed for that reason.

Complaint case before a Magistrate: there is no FIR or police investigation to challenge. The summoning order and the complaint proceedings are ordinarily challenged under Section 528 BNSS, or, where appropriate, in revision.

DOCUMENTS AND INTERIM PROTECTION

Whichever route is chosen, the petition should be supported by the FIR, the charge-sheet if filed, the cognizance or summoning order if passed, and the documents on which the petition relies, such as an agreement showing that the dispute is civil in nature or a prior decision on the same facts. The petition should state candidly the stage the case has reached, because the choice of route depends on it.

Interim protection is not automatic in either jurisdiction. In Neeharika Infrastructure, the Supreme Court held that while a quashing petition under Section 482 CrPC or Article 226 is pending, a stay of investigation or an order of 'no coercive steps' is the exception and not the rule; that where such an interim order is justified in an exceptional case, brief reasons must be given and its terms made clear; and that such an order should not be passed while dismissing or disposing of the quashing petition. A person who apprehends arrest should therefore also consider an application for anticipatory bail under Section 482 BNSS, which is a separate remedy with its own considerations.

PRACTICAL SUMMARY

In the Allahabad High Court, the choice of petition follows the stage of the case. Before cognizance, an FIR, and if filed a charge-sheet, is ordinarily challenged by a writ petition under Article 226. After cognizance, the challenge is brought under Section 528 BNSS against the FIR, charge-sheet and cognizance or summoning order together. The legal test for quashing is substantially the same under both. The rule against Section 528 applications directed at an FIR comes from Ram Lal Yadav and is now before a nine-Judge Bench, so the position should be checked at the time of filing. Each case turns on its own facts and record, and the choice of route, like the merits of the challenge, should be settled with advice on the particular case.

This article is for general information and does not constitute legal advice. It states the law as we understand it on 3 November 2026.