Allahabad High Court
Danish @ Danish Ahmad vs State Of U.P. And 3 Others on 11 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:161039
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 22984 of 2025
Danish @ Danish Ahmad
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite Party(s)
Counsel for Applicant(s)
:
Ambleshwar Pandey, Devaang Savla
Counsel for Opposite Party(s)
:
G.A.
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Vakalatnama filed by Sri Anuj Srivastav on behalf of applicant is taken on record.
2. This Court on 03.07.2025 issued notice to the opposite party no. 4. There is an office report dated 23.07.2025 that notice has been served upon the opposite party no. 4. Till the dictation of the order, nobody has put in appearance on behalf of opposite party no. 2. Deeming the notice to be sufficient, the Court is proceeding with the matter.
3. Heard Sri Anuj Srivastava, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.
4. This application u/s 528 of BNSS has been preferred to quash the impugned summoning order dated 28.05.2025 and the entire proceedings arising out of Complaint Case No. 99 of 2024 u/s 452, 376, 506 I.P.C. & 3/4 POCSO Act, Police Station Khanpur, District-Bulandshahr, pending in the Court of Special Judge (POCSO Act), Bulandshahr (Israt Vs. Danish).
5. The case of the applicant is that proceedings under Section 175(3) BNSS came to be lodged by the opposite party no. 2 on 10.07.2024/11.07.2024 with an allegation that the opposite party no. 2 happens to be the maternal grand mother of the victim, who is a minor. It is also alleged that the victim along with two other sisters living with the opposite party no. 2 and the mother of the victim has expired and the father of the victim namely, Naushad is missing and he has not been permitted to meet the children. Allegation is to the effect that on gathering information that the father of the victim and the son in-law of the opposite party no. 2 was in the village, the opposite party no. 2 along with the victim and others had gone to meet Naushad. On 19.06.2024, when the applicant herein who happens to be the elder brother of Naushad hurled abuses and assaulted the opposite party no. 2 pursuant whereto, a first information report bearing no. 296 of 2024 under Sections 323, 504 & 506 IPC came to be lodged. Being annoyed with lodging of the first information report, the applicant bore animosity with the opposite party no. 2 and he used to hurled abuses and threatened and he came to the house of the opposite party no. 2 on 26.02.2024 at 6:00 and with the aid of the country-made pistol while threatening the opposite party no. 2 was locked in a room and he proceeded to outrage the modesty of the victim while disrobing her and tearing her clothes and witnessing the same onlookers, the applicant herein threatened that he would murder them and he left the place. Attempts were being made for lodging of the first information report but nothing was done, thus, on 28.06.2024 a complaint was lodged before the SSP, Bulandshahr followed by a proceedings under Section 175(3) BNSS on 10.07.2024/11.07.2024. Post recording of the statement of the opposite party no. 2 under Section 200 followed by the victim under Section 202 and Abid son of Abdul under Section 202, the applicant herein came to be summoned on 28.05.2025 under Sections 452, 376 and 506 IPC read with Section 3/4 of the DP Act.
6. Questioning the summoning order, the present application has been preferred.
7. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for even a single moment. Elaborating the said submission, it has been contended that totally false and frivolous story has been sought to be cooked up just in order to falsely implicate the applicant and to rope in the applicant. Submission is that in the proceedings under Section 175(3) of BNSS, it has been alleged that the father of the victim and the son in-law of the opposite party no. 2, Naushad was not being allowed to meet the victim and the two sisters for a period of five years but while inviting the attention towards page 126 of the paper book, it is contended that Naushad is working in Kingdom of Saudi Arabia and passport and other documents have been annexed. Contention is that very basis of lodging of complaint itself is incorrect and false less to say about other allegations. Submission is also to the extent that in the complaint, incident regarding commission of offences have been alleged on 26.06.2024 at 6:00 in the evening when the applicant barged into the house of the opposite party no. 2 and while threatening the opposite party no. 2 with the aid of country-made pistol the opposite party no. 2 was locked in a room, however, in the statement of the victim under Section 202 she had deposed that the opposite party no. 2 was not in the house and she was all alone. Further submission is that on the hue and cry so raised post outraging the modesty of the victim, the neighbours and the other villagers came which has alleged in the complaint but there happens to be in a police report so obtained pursuant to the direction of the court below, it has come on record that nobody was present and even the incident was also said to have not occurred as Abid has also come up with the stand who happen to be a witness who had given statement under Section 202 that he had gone somewhere outside and he was not present. He submits that even otherwise there is no medical report to suggest that the victim was subjected to outraging of modesty and once there is no medical report available on record then the adverse interference is to be drawn particularly when the medical report would have been a clinching evidence in order to show whether any offence has been committed or not. Learned counsel for the applicant has also submitted that each and every attempt was being made by the opposite party no. 2 just to entangle the applicant as earlier a first information report came to be lodged against the applicant being Case Crime No. 177 of 2016 (State Vs. Naushad) in which the charges were framed under Section 306 IPC and the alternate charges under Sections 498A and 302 IPC wherein the applicant was given a clear acquittal on 05.10.2018 by the court and further so far as the FIR so lodged by the opposite party no. 2 as referred to in the complaint is concerned, there is no charge sheet till date.
8. In a nutshell, the submission is that the applicant is innocent, he has not committed the said offence and further the court below in a routine manner without recording any prima facie satisfaction about the applicability of the penal sections has summoned the applicant.
9. Sri Vikas Sharma, learned State Law Officer, on the other hand, has submitted that none of the contentions so sought to be raised by the learned counsel for the applicant has any legs to stand particularly when there are no material contradictions in the statements of the witnesses under Sections 200 and 202 Cr.P.C. vis-a-vis the allegations in the complaint so as to completely erode the prosecution theory. According to him, so far as the police report is concerned, the same is at best a defence which can be taken at the stage when the trial commences and mere non-subjection of the victim to medical examination would not render the summoning order fatal as it would be a consideration at a stage when a decision is to be taken for acquittal or convicted during the trial.
10. I have heard the submission so made across the bar and perused the record carefully.
11. Apparently, at the instance of the applicant, challenge has been raised to the summoning order dated 28.05.2025 passed in Complaint Case No. 99 of 2024 under Sections 452, 376 and 506 IPC read with Section 3/4 of the POCSO Act. There are certain parameters which have to be adhered to in order to determine whether the summoning order suffers from infirmity or not and one of the factors which would be inevitably relevant would be the allegations in the complaint vis-a-vis the statements under Sections 200 and 202 of the Cr.P.C., in case, there are no material contradictions which goes to the root of the matter then the case becomes triable. Applying the said principles in the present facts of the case, it emerges that the opposite party no. 2 claims herself to be the maternal grand mother of the victim and two other children mother of whom had expired and the husband of the deceased was Naudhad and the applicant herein is stated to be the elder brother of Naushad. As a matter of fact, there are two incident which have been referred to in the complaint firstly, dated 19.06.2024 regarding assaulting, beating and hurling of abuses which emanated in lodging of the first information report 296 of 2024 under Sections 323, 504, 506 IPC and the second incident dated 26.06.2024 at 6:00 in the house of the opposite party no. 2 wherein the allegation is that the modesty of the opposite party no. 2 was outraged. Though it is the argument of the learned counsel for the applicant that in the complaint, allegation is that the opposite party no. 2 was locked in a room on a gun point and thereafter the victim was subjected to outraging of modesty, however, according to him, there happens to be a material contradiction in the statement of the victim under Section 202 wherein the victim has come with with a stand that the opposite party no. 2 was not in the house and she was all alone. Further the allegation in the complaint is regarding outraging of modesty of the victim so supported in the statement of the opposite party no. 2 under Section 200 and on top of it by the victim under Section 202 Cr.P.C. once the victim herself is coming up with a stand that she has been subjected to outraging of modesty by the applicant that too 6:00 in the evening in her house then it cannot be said that prima facie no offence has been committed. Even otherwise, it is not a case wherein the victim is not related to the applicant as he happens to be the elder brother of the father of the victim. Though the learned counsel for the applicant may be right in contending that with respect to the presence of the opposite party no. 2 at the time when the incident took place, there happens to be contradictions but these contradictions cannot denude the weightage which is be accorded to the statement of the victim who alleges to have been subjected to outraging of modesty. Insofar as the reliance placed upon the police report is concerned, though it discloses that Abid who has recorded statement under Section 202 had himself stated that he had gone somewhere outside and the statement of other villagers were taken but the said police report is nothing but a defence which is to be raised when the trial commences. As regards the fact that the victim was not subjected to medical examination and, thus, the entire prosecution theory is to fall is concerned, in the opinion of the Court, the effect and the impact of the same is a subject matter which is to be considered in trial at this stage when a decision is to be taken whether it is a case of acquittal or conviction. Moreover, the theory so sough to be propounded by the applicant that already in the proceedings a Case Crime No. 177 of 2016 under Section 306 IPC and the alternate charges under Sections 498A and 302 IPC, the applicant stood acquitted where acquittal is concerned, the same is also a factor which may attribute to a defence which is liable to be taken when the trial commences as at the stage of summoning what would be relevant is whether the witnesses support the prosecution theory or not.
12. There is another aspect of the matter which needs to be noticed i.e. Section 29 with regard to presumption as the certain offences of the Protection of Children from Sexual Offices Act, 2012 according to which 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, the Special court shall presume that such person has committed or abetted or attempted to commit the offences as the case may be unless the contrary is proved. The words employed by the legislature, "unless the contrary is proved" marks significance as they pre-suppose a trial.
13. With respect to the judgment in the case of Pradeep Kumar Kesarwani Vs. State of U.P.: Criminal Appeal No. 3831 of 2025 decided on 02.09.2025 is concerned, there is no quarrel to the proposition of law wherein, it has been held that it is the duty of the Court when the accused seeks quashing of the FIR or proceedings on the ground that such proceedings is manifestly frivolous or fictitious or instituted with an ulterior motive to interfere but here, there is a slight distinction here the statements of the victim do prima facie depict that the commission of offences cannot be ruled out.
14. In any view of the matter, the present case in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 the Hon'ble Apex Court had flagged a note of caution that the proceedings are not to be forestalled while interfering under the provisions of Section 482 Cr.P.C./528 BNSS until there are exceptional circumstances. Since in the present case there are no exceptional circumstances, thus, this Court does not find the present case to warrant interference.
15. Accordingly, interference is declined, the application stands disposed of leaving it open for the applicant to raise all legal and factual contentions while contesting the trial.
(Vikas Budhwar,J.)
September 11, 2025
Rajesh
