Dharmendra Yadav vs State Of U.P. And Another
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Allahabad High Court

Dharmendra Yadav vs State Of U.P. And Another on 13 May, 2025

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:79558
 
Court No. - 70
 

 
Case :- APPLICATION U/S 528 BNSS No. - 11318 of 2025
 

 
Applicant :- Dharmendra Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anurag Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Anurag Dubey, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Dharmendra Yadav, who is a named as well as charge sheeted accused and facing trial before Court below, has now approached this Court by means of present application under Section 528 BNSS with the following prayer;-

"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the order dated 19.08.2023 (Annexure No. 13 at page no. 124 to the accompanying affidavit to the application) passed by the learned Special Judge (S.C/ST Act) Agra, in Session Trail No. 526 of 2017 (State Vs Dharmendra Yadav), arising out of Case Crime No. 197 of 2015 U/S 376, 506 I.P.C. and Sections 3(2)5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Mahila Thana, District Agra, by which the learned trial court framed the charges against the applicant under Sections 376, 506 1.P.C. and 3(2)5 S.C./S.T. (P.A.) Act as well as quash the entire criminal proceeding of Special Session Trail No. 526 of 2017 arising out of Case Crime No. 197 of 2015 U/S 376, 506 1.P.C. and Sections 3(2)5 of the Scheduled Castes and he Scheduled Tribes (Prevention of Atrocities) Act, P.S. Mahila Thana, District Agra.

It is further prayed that the effect and the operation of the aforesaid impugned order dated 19.08.2023 may be ayed and the further proceeding of Session Trail No. 526 of 2017 noted above may also be stayed, during the pendency of present application before this Hon'ble Court and/or pass such other and further order, which this Hon'ble Court may n fit and proper under the facts and circumstances of the case, so that justice may be done, otherwise the applicant suffer irreparable loss and injury."

4. At the very outset, the learned A.G.A. has raised a preliminary objection by contending that charges have already been framed against applicant vide, framing of charge order dated 19.08.2023 passed by Court below in exercise of jurisdiction under Section 228 Cr.P.C. He, therefore, submits that once the charges have been framed against accused-applicant by Court below, therefore, the challenge to the criminal proceedings of above-mentioned Special Sessions Trial cannot be examined at this stage. As such, the challenge to the proceedings pending against accused-applicant before Court below is now misconceived and therefore, the present application is liable to be dismissed.

5. When confronted with above, the learned counsel for applicant invited the attention of Court to the judgment of Supreme Court in Satish Mehra Vs. State (NCT of Delhi) and Another, (2012) 13 SCC 614, wherein the Apex Court has itself observed that the veracity of proceedings pending against accused can more appropriately be examined by this Court in exercise of jurisdiction under Section 528 BNSS, after the charges have been framed against accused by Court below in exercise of jurisdiction under Section 228/240 Cr.P.C. Learned counsel for applicant thus submits that in view of aforementioned categorical pronouncement of the Supreme Court, the primary objection raised by the learned A.G.A. is misconceived. As such, the same is liable to be rejected.

6. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that in view of aforementioned judgment of Supreme Court, the primary objection raised by the learned A.G.A. in opposition to this application is misconceived and therefore, liable to be rejected by this Court.

7. It is, accordingly, rejected.

8. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused and facing trial before Court below, however, in view of the facts and circumstances as have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. As such, the present application is liable to be allowed and the impugned criminal proceeding pending against applicant before Court below are liable to be quashed by this Court.

9. In furtherance of aforesaid submission, the learned counsel for applicant submits that it is an undisputed fact that applicant and the prosecutrix were in consensual physical relationship for almost 2 years. Since the prosecutrix is major and she willingly entered into consensual physical relationship with accused-applicant, therefore, it cannot be said that offences as alleged against applicant can be said to be made out. Since the prosecutrix was major on the date, she entered into relationship with applicant then it shall be presumed that she understood the consequences of the relationship, she was about to enter with applicant. On the above conspectus, it is thus sought to be urged that since the prosecutrix is major, a willing and consenting party, which relationship is continuing from almost 2 years, therefore, no offence as alleged can now be said to be made out against applicant. Referring to the judgment of Supreme Court in Biswajyoti Chatterjee Vs. State of West Bengal, 2025 SCC OnLine SC 741, the learned counsel for applicant submits that the Apex Court in aforementioned judgment has already held that in case, the parties were in consensual relationship for one year then in that eventuality, the allegation for an offence under Section 376 IPC by the prosecutrix against the accused is not liable to be sustained. On the edifice of aforesaid submissions, it is thus urged by the learned counsel for applicant that present application is liable to be allowed.

10. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present application. Learned A.G.A. submits that in the present case, charges have already been framed against applicant, vide framing of charge order dated 19.08.2023 passed by Court below. Once the charges have been framed against applicant then Court below is bound to answer the charges so framed either way, meaning thereby that accused-applicant can either be acquitted of the charges alleged against him or he can be convicted for the charges so framed against accused-applicant. It is then submitted by the learned A.G.A. that the issue with regard to the discharge of an accused or sustainability of prosecution of an accused is no longer re-integra and stands concluded by a Three Judges Bench judgment of Supreme Court in Tarun Jit Tejpal Vs. State of Goa, (2020) 14 SCC 556, wherein the Apex Court has laid down the parameters, which are required to be observed for deciding the discharge of an accused/framing of charge against an accused. The Court upon consideration of the entire gamut of case law on the issue, ultimately denuded that the prosecution of an accused can be sustained under three circumstances;- (A). As per the papers accompanying the police report submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C., the commission of an offence as alleged to prove, (B). As per the papers accompanying the police report there is sufficient evidence against accused and (C) there is a grave suspicion against applicant. On the above premise, the learned A.G.A. submits that no illegality can be attached to the framing of charge order passed by Court below inasmuch as, the prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has categorically and clearly spelled out the criminality committed upon her by accused-applicant. The issue as to whether, consent of the prosecutrix was there, before she entered into physical relationship with applicant or not is a question of fact, which can be considered by the Trial Court only during course of trial. It is further contended by the learned A.G.A. that even in case of consensual relationship, if there is no consent on the part of the prosecutrix qua the physical relationship then in such a circumstance, prosecution of an accused can be sustained. Reference in this regard was made by the learned A.G.A. to the judgment of Apex Court in the case of X. Vs. State of Maharashtra, 2023 SCC OnLine SC 279. On the above premsie, the learned A.G.A. submits that no interference is warranted by this Court in present application.

11. When confronted withe above, the learned counsel for applicant could not overcome the same.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application are clearly borne out from the record, and furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, this Court does not find any good ground to entertain the present application.

13. As a result, the present application fails and is liable to be dismissed.

14. It is, accordingly, dismissed.

Order Date :- 13.5.2025

Vinay