Subedar And 3 Others vs State Of U.P. And 3 Others
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Allahabad High Court

Subedar And 3 Others vs State Of U.P. And 3 Others on 5 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:131857
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 19963 of 2025
 

 
Applicant :- Subedar And 3 Others
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Akhilendra Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Shri Yogesh Kumar Mishra has made a statement at bar that he has filed his vakalatnama through registry and he has produced a receipt to the Court today. A copy of the receipt is being forwarded to the Court which is kept on record.

2. Heard Shri Akhilendra Yadav, learned counsel for the applicants and Sri S.P. Singh, learned State Law Officer for the State as well as Shri Yogesh Kumar Mishra, counsel for opposite party no. 2.

3. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.

4. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order Dated 19.02.2024 and entire proceeding of Complaint Case No. 26 of 2022 (Dipty @ Rajesh Kumar Vs. Subedar and others) under Sections 354, 323, 504, 506 I.P.C. & 7/8 Protection of Children from Sexual Offences Act Police Station Handia, District Prayagraj pending in the court of learned Additional District & Session Judge/Special Judge, POCSO Act, Allahabad.

5. The case of the applicants is that proceedings under Section 156(3) Cr.P.C. stood initiated by the opposite party no. 2 against the applicants who are four in number and other accused for the offences under Sections 354, 323, 504, 506 I.P.C. & 7/8 Protection of Children from Sexual Offences Act with an allegation that the opposite party no. 2 is a poor and a weak person and his daughter (victim) is 12 years old on 14.07.2022 at 11 in the night, the applicant no. 1 had come to the house of the opposite party no. 2 and the daughter of the opposite party no. 2 was sleeping. He thereafter had put his hand and placed it upon the mouth of the daughter of the opposite party no. 2 and proceeded to attempt to outrage the modesty and molest the daughter of the opposite party no. 2 (victim) and on the hue and cry so raised, the family members who were in the house, woke up and they caught hold of the applicant no. 1. As soon as the applicant no. 1 was caught hold of, his brothers who are the other applicants herein resorted to assault the opposite party no. 2 and hurled abuses and administered threat that they would kill the opposite party no.2 and thereafter the applicants ran away. Thereafter on 15.07.2022 that in the next day, the opposite party no. 2 claims to have approached the police station along with a complaint for lodging of the first information report but nothing was done and then again a written complaint was made on 15.07.2022 before the In-charge Inspector, Handia and on 16.07.2022 in the 'Samadhan Diwas', an application came to be filed and on 19.07.2022, a complaint came to be preferred before SHO, Handia and a complaint was also preferred before the Senior Superintendent of Police, Prayagraj through registered post and on 25.07.2022, a complaint was written to the District Magistrate, Prayagraj but no action whatsoever was taken which compelled the opposite party no. 2 to file proceedings under Section 156(3) Cr.P.C. on 12.10.2022. Thereafter the case transformed into a complaint case and post recording of the statements of the opposite party no. 2, complainant under Section 200 Cr.P.C. followed by Smt. Saroja wife of complainant under Section 202 Cr.P.C. and Sewaram, under Section 202 Cr.P.C. and the victim under Section 202 Cr.P.C., the applicant no. 1 came to be summoned under Sections 354, 323, 504, 506 I.P.C. & 7/8 Protection of Children from Sexual Offences Act and the rest of the applicants under Sections 323, 504, 506 IPC on 19.02.2024 by learned Additional District & Session Judge/Special Judge, POCSO Act, Allahabad.

6. Questioning the summoning order, the applicants have been filed the present application.

7. Learned counsel for the applicants submits that the summoning order cannot be sustained for a single moment. Elaborating the said submissions, it is being sought to be argued that the complaint contains totally incorrect facts which have got no nexus with reality, particularly, no offences had been committed. Submission is that in case, any offence was committed regarding beating, assaulting to the opposite party no. 2 and also molesting the victim then the victim as well as the opposite party no. 2 would have been subjected to medical examination and since they were not subjected to medical examination, thus, adverse inference is to be drawn and which makes the entire prosecution theory false, particularly, eroding the substratum.

8. Submission is that the applicants are the labour who had executed certain works in the field of the opposite party no. 2 and when the applicant no. 1 asked to come there to take their remuneration then the opposite party no. 2 resorted to beating and assaulting pursuant whereto the applicant no. 1 sustained injuries and the injury report is there dated 15.07.2022 which contains as many as four injuries being contusion. Further submission is that it is the applicants who have been subjected to harassment at all possible times and in order to cover up the misdeeds and cope up the entire offence which was committed by the opposite party no. 2, a false and concocted story has been cocked up while lodging complaint on 12.10.2022 with respect to an incident dated 14.07.2022, thus, there happens to be a delay. The submission is that even the statements under Section 200 and 202 Cr.P.C. of the witnesses are tailor made just to suit the case of the prosecution. He further submits that the applicants are innocent and the court below has summoned the applicants in a routine manner without recording any prima facie satisfaction about the attraction of the penal sections.

9. Learned State Law Officer as well as counsel for the opposite party no. 2 on the other hand submits that there has been no delay in lodging the complaint, as a perusal of the complaint dated 12.10.2022 would reveal that the incident is dated 14.07.2022 and constant efforts were made on 15.07.2022, 16.07.2022, 19.07.2022 and 25.07.2022 and once nothing was done, there was no heed paid to the request for lodging of the complaint, thus, proceedings under Section 156(3) Cr.P.C. stood trigerred on. Submission is that there are no material contradictions or variations so as to completely demolish the prosecution theory.

10. I have heard learned counsel for the parties and gone through the records carefully.

11. Apparently, in case in hand, challenge has been raised to a summoning order whereby applicants have been summoned under the penal sections. There are certain yardsticks which have to be followed in order to determine whether the summoning order suffers from illegality or not. Amongst others, one of them would obviously be the nature of the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 Cr.P.C. In case, there are material contradictions and variations which go to the root of the matter then obviously the Court would interfere. If there are no variations or material contradictions then the case becomes triable then the Court would obviously be reluctant in interference.

12. Importantly, in the case at hand, the allegations are that on 14.07.2022, the applicant no. 1 barged into the house of the opposite party no. 2 wherein the victim was all alone and thereafter she was molested and attempt was made to outrage the modesty of the victim and further the opposite party no. 2 was also beaten and thereafter the other applicants along with co-accused marked in the complaint pounced upon the opposite party no.2 and inflicted injuries. The statements under Sections 200 and 202 Cr.P.C. of the witnesses prima facie in the opinion of the Court do not out-rightly overrule the possibility of the attraction of the penal consequences, thus, the case becomes triable. As regards the contention of the learned counsel for the applicants that neither the victim nor the opposite party no. 2 was subjected to medical examination thus the entire prosecution theory is bound to fall, is concerned, the same is not convincible, particularly, when the impact and the effect of non-subjection to medical examination would be a factor which is to be taken into consideration if raised at the time when the trial commences and not at a stage when the summoning order is a subject matter of challenge. Apart from the same, the reliance so placed by the applicants to the police report is concerned, the same may be a factor which can be taken as defence, consideration whereof is raised if necessitated when the trial commences. when the decision is to be taken with regard to the fact whether the accused is to be convicted or acquitted. At the stage of summoning what is required, would be the material, which obviously would primarily include the statements under Sections 200 and 202 of the Cr.P.C. and the nature of the allegations sought to be levelled vis-a-vis their impact on each other.

13. With respect to the argument so raised by the learned counsel for the applicants that even on 15.07.2022 when the applicant no. 1 had approached to the opposite party no. 2 for getting his remuneration for the work executed by him in the agricultural field and then the opposite party no. 2 had resorted to beating pursuant whereto injuries are concerned, they are the matter of defence, consideration whereof are not required to be gone into at this stage, when summoning order is subject matter of challenge. Even otherwise there is another facet of the matter with respect to Section 29 of POCSO Act, 2012, according to which, there is presumption as to certain offences whereby where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. The word employed by the authorities legislature "the contrary is proved" signifies conduction of trial in a given case.

14. Moreover, the extent of judicial intervention in the matter where the summoning order is being subject matter of challenge in the proceedings under Section 482 Cr.P.C./ 528 BNSS came up for consideration is before the Hon'ble Apex Court and in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 wherein a note of caution was flagged that the Court in a routine manner are not to interfere in the summoning order in order to scuttle the proceedings.

15. Cumulatively, analyzing the case from the four corners of law, the Court finds that does not find the present case is to be fit case for interference, accordingly, the interference is declined, the application stands disposed of.

16. Leaving it open to the applicants to take legal recourse to the remedy as available under the Act

17. The counsel for the applicants at this stage seeks a direction for enlargement on bail.

18. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions in light of the judgment in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another; decided on 07.10.2021 in S.L.P. No.5191 of 2021 with relation to enlargement on bail strictly as per the law without any delay.

Order Date :- 5.8.2025

A. Prajapati