Shera And 2 Others vs State Of Up And 3 Others
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Allahabad High Court

Shera And 2 Others vs State Of Up And 3 Others on 21 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:117651
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 20071 of 2025
 

 
Applicant :- Shera And 2 Others
 
Opposite Party :- State Of Up And 3 Others
 
Counsel for Applicant :- Asif Hasan,Tufail Hasan
 
Counsel for Opposite Party :- Anees Baig,G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Tufail Hasan, learned counsel for the applicants and Sri Vikas Sharma, learned State Law Officer, who appears for the State.

2. A joint statement has been made by learned counsel for the parties that they do not propose to file any affidavit. The application be decided on the basis of the documents available on record.

3. With the consent of the parties, the application is being decided at the fresh stage.

4. This is an application under Section 528 of BNSS preferred by the applicants for quashing the summoning order dated 05.05.2025 passed by Additional Sessions Judge/ Additional Special judge POCSO Court no.2 Firozabad in Sessions Case no.1117 of 2024 (Jamila Begum Vs. Shera & others) under section 451, 354-B, 506 I.P.C. and 7/8 POCSO Act, Police Station Ramgarh, District Firozabad, pending in the Court of Additional Sessions Judge/ Additional Special Judge POCSO Court no.2 Firozabad.

5. The case of the applicants is that proceedings under Sections 156(3) CrPC came to be preferred by the O.P. No.2 on 16.05.2024 against the applicants under Sections 376, 323, 504, 506 IPC read with Section 7/8 of POCSO Act with an allegation that on 02.05.2024, the complainant who happens to be the mother of the victim, aged about 17 years, had gone to buy vegetables from market at 06:30 P.M. and the victim was all alone in the house. The applicants herein, who are three in number barged into the house and applicant nos. 2 and 3 armed with knife and they were helping the applicant no.1 and the appliant no.1 in order to outrage the modesty of the victim, tore the cloths, which the victim was wearing and the victim thereafter made hue and cry. Pursuant whereto, Hina, Prakash, Rafeeq, Nadim and other persons, who were in the close vicinity ran to rescue the victim and the applicants herein threatening and hurling abuses ran away. It is also alleged in the complaint that even previously also with the victim, such type of molestation was done on 25.09.2022 and the husband of O.P. No.2/complainant had even lodged a complaint before the S.S.P, wherein, the compromise took place. It is also alleged that with respect to the incident, which occurred on 02.05.2024, though all possible attempts were made for lodging FIR, but nothing was done. It is also alleged that when the said FIR was not lodged and O.P. No.2 failed to get the FIR lodged, so on 02.05.2023 on the next day, the applicants herein armed with blunt and pointed and sharp edged weapons such as cuddle, iron rod, knife etc. along with Raju, Shamshad, Shera, Akbar, Alauddin, Shanu son of Salauddin, Salauddin son of not known came to the house of the applicant and thereafter they hurled abuses, threatened and the applicant no.1 had hit upon the son of the O.P. No.2, pursuant whereto he sustained injuries. All possible attempts were made for lodging of the FIR under the above noted sections, but an FIR came to be lodged being FIR No.0280 on 03.05.2024 at 09:50 hours under Sections 506, 504, 323, 147 and 452 IPC with respect to the incident dated 03.05.2024 and not with regard to incident dated 02.05.2024. Post-registration of the said case as complaint case and post-recording of the statement of complainant/O.P. No.2 under Section 200, victim under Section 202 and one Prakash under Section 202 CrPC, the applicants have been summoned under Sections 451, 354B, 506 IPC read with Section 7/8 of POCSO Act on 05.05.2025 by the Court of Addl. Sessions Judge/ Addl. Special Judge, POCSO Court No.2, Firozabad in Sessions Trial No.111 of 2024.

6. Learned counsel for the applicant has submitted that the allegations so leveled in the complaint has no basis. They are nothing but a bundle of lies, which have got not nexus with reality. Submission is that no such incident occurred on 02.05.2024 and further the victim was also not subjected to medical examination and had the victim been subjected to medical examination, truth would have surfaced. Further submission is that showing a false and a fictitious story with respect to an incident dated 03.05.2024, an FIR came to be lodged. However, being not satisfied with the same, now the impugned complaint has been lodged on 16.05.2024, i.e. after a period of 14 days of the incident. Submission is that there is nothing on record, even otherwise to suggest that any offence has been made out, particularly when the entire story so cooked up with the O.P. No.2 was just in order to falsely implicate the applicant and keep them confined behind the bars. He further submits that the summoning order has been passed in a routine manner without according any satisfaction regarding application of the penal sections.

7. Learned State Law Officer as well as the counsel for O.P. No.2 submit that whatever might be, there are two incidents, one is dated 02.05.2024 which became the basis for lodging of the complaint, pursuant whereto the applicant has been summoned and the second incident is dated 03.05.2024. He further submits that even there is no material contradictions in the statements of the witnesses under Section 200 and 202 CrPC, vis-a-vis the allegations in the complaint and further non-subjection of the victim to medical examination would not be fatal in that regard.

8. I have heard the submissions so made across the Bar and perused the records carefully.

9. In the present case in hand, at the instance of the applicant, challenge has been raised to the summoning order, whereby the applicant has been summoned under Sections 451, 354-B, 506 IPC read with Section 7/8 of POCSO Act. At the stage of summoning, the Court is only required to record a prima facie satisfaction that the case is triable and the allegations are not frivolous. The criteria would be the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 of CrPC. Apparently, the victim pinpoints the involvement of the applicants that the applicant no.1 sought to outrage the modesty and the applicant nos. 2 and 3 were also there. The statements of the complainant and of the other independent witnesses also support the prosecution theory. Much emphasis has been laid down by learned counsel for the applicants, that no such incident took place on 02.05.2024 and even if presuming that any incident took place on 02.05.2024, though it is highly disputed, the same would not be a factor to hold that the incident took place on 02.05.2024, particularly when the victim was not subjected to medical examination. As a matter of fact, non-subjection of the victim to medical examination would have its own effect, impact and ramification at the stage, when trial commences, when a decision is to be taken whether the accused are to be held guilty or not. Apart from this, in the complaint itself, the allegation is that with respect to the incident dated 02.05.2024, every possible effort was taken by O.P. No.2 to get the FIR lodged, however, when the same was not lodged then the applicants herein barged into the house of O.P. No.2 and committed the alleged criminality on 03.05.2024.

10. In any view of the matter, this Court finds that the court below while summoning the applicants has recorded prima facie satisfaction regarding the fact that the case is triable and further there are no material contradictions or variations. Even otherwise, section 29 of the Protection of Children From Sexual Offences Act, 2012 itself provides for presumption as to certain offences, where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, then the Special Court is to presume that such persons has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary proves. The word employed 'the contrary is proved' personifies a trial.

11. Cumulatively analyzing the case from four-corners of law, this Court does not find any infirmity in summoning the applicant.

12. At this stage the learned counsel for the applicants submits that liberty be accorded to the applicants to prefer bail application before the court below and the court below be directed to consider the same in light of Satender Kumar Antil Vs. Central Bureau of Investigation, (2022) 10 SCC 51.

13. Considering the submissions made across the Bar and the statements so sought to be made by them, the application stands disposed of while observing that in case appropriate proceeding in the form of bail application is preferred before the court below, then the same shall be decided with most expedition strictly in accordance with the law of the land keeping in view the judgment in the case of Satender Kumar Antil (supra).

Order Date :- 21.7.2025

N.S.Rathour

(Vikas Budhwar, J)