High Court

1. Heard Sri Pankaj Bharti, learned counsel for the applicant, Sri Vikas Sharma, learned State Law Officer for the State and Sri Shyam Shanker Pandey, learned counsel appearing for O.P. No.2.

2. A counter affidavit has been filed today by Sri Shyam Shanker Pandey on behalf of O.P. No.2, which is taken on record.

3. Learned counsel for the parties have made a statement at Bar that they do not propose to file any affidavit and the application be decided at the fresh stage. Thus, with the consent of the parties, the application is being decided at the fresh stage.

4. This is an application under Section 482 of the Code of Criminal Procedure preferred by the applicant for quashing the summoning order dated 26.10.2023 and the proceedings of Complaint Case No.06/9 of 2021, X Vs. Nitin, arising out of Case Crime No.153 of 2018, under Sections 354, 323, 504 506 IPC, and under Section 3(2)5 of the SC/ST Act and U/s 3/4 of the POCSO Act, P.S. Charthawal, District Muzaffar Nagar, .

5. Learned counsel for the applicant has submitted that on 28.04.2018 at 22:43 hours, an FIR stood lodged against the applicant by the first informant, under Sections 354, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act and 3(1)XII of the SC/ST Act relatable to commission of the offences from 25- 28.04.2018 with an allegation that the first informant 'X', who is studying in Class-12 aged about 18 years along with his younger sister while on 22.02.2028 proceeding to the agricultural field while taking the food articles, where their father was ploughing the field, the applicants herein obstructed their way and showed indecent behaviour and also tried to strip off the clothes and took them in the agricultural field and when the first informant 'X' and 'Y' started screaming, then Ramesh son of Arnesh and Smt. Santalesh came for rescue and thereafter the applicant hurled caste-based abused. It is also alleged that when the mother of the first informant 'X' was doing certain household work with the help of cowdung, then the accused had hurled abuses, pursuant to which FIR was lodged. It is also argued that the dictation of the written report was taken by 'Y'. Learned counsel for the applicant has invited the attention of this Court towards Annexure-5 at page- 44 of the paper-book being the deposition under Section 161 of CrPC, so as to contend that in order to add colour, now the offences relatable to outraging modesty (rape) has also been leveled and so much so besides the statement of first informant 'X' and 'Y' has also deposed in the same manner. Learned counsel for the applicant further submits that the real brothers of the first informant, namely, Ankit and Rohit in their statements recorded under Section 161 CrPC have denied happening of any of such event and according to them, it was on account of the election rivalry, which was made the motivating factor for lodging of the FIR. Learned counsel for the applicant submits that a Final Report stood submitted against the applicant on 25.06.2018, against which the first informant submitted a protest petition on 06.10.2018. Statement under Section 200 CrPC was recorded on 17.08.2021 and thereafter the statement under Section 202 of CrPC was recorded on 31.03.2022 and thereafter on 26.10.2023, summoning order has been passed. Learned counsel for the applicant submits that besides the fact that there happens to be allegations which are not borne on record, particularly when new case has been injected in the statement under Section 164 CrPC, which was neither the case under Section 161 CrPC nor in the FIR and further there happens to be the depositions under Section 161 CrPC of the two real brothers of the first informant denying the said criminality, thus the summoning order cannot be sustained. Additionally, it has been argued that the summoning order is based upon the depositions made under Sections 161 and 164 CrPC, which apparently is an inherent defect, which goes to the root of the matter, particularly when the statement under Section 161 CrPC read with section 164 CrPC stood merged with the final report and thereafter post submission of protest petition, a complaint case stood transformed, thus what was relevant to be taken into consideration was the deposition under Sections 200 and 202 CrPC. He thus submits that the order impugned be set aside.

6. Learned A.G.A. as well as learned counsel for O.P. No.2 submit that though the offences are made out, but according to them, there happens to be inherent defect in the summoning order and the same be set aside and matter be remitted back to be again decided in light of depositions under Sections 200 and 202 of CrPC.

7. Having heard learned counsel for the parties, this Court is of the opinion that once an inherent defect going to the root of the matter, regarding the fact that depositions under Sections 200 and 202 of CrPC were to be considered while forming of an opinion regarding commission of offences for the purpose of summoning instead of the depositions under Sections 161 and 164 CrPC, then this is a case wherein the order cannot be sustained in the eyes of law.

8. Accordingly, the application is allowed.

9. The order dated 26.10.2023 passed in Complaint Case No.06/9 of 2021, X Vs. Nitin, arising out of Case Crime No.153 of 2018, under Sections 354, 323, 504 506 IPC, and under Section 3(2)5 of the SC/ST Act and U/s 3/4 of the POCSO Act, P.S. Charthawal, District Muzaffar Nagar, is set aside.

10. The matter is remitted back to the court below to pass a fresh order strictly in accordance with law. Order Date :- 19.2.2025 N.S.Rathour (Vikas Budhwar, J)

1. Heard Sri Pankaj Bharti, learned counsel for the applicant, Sri Vikas Sharma, learned State Law Officer for the State and Sri Shyam Shanker Pandey, learned counsel appearing for O.P. No.2.

2. A counter affidavit has been filed today by Sri Shyam Shanker Pandey on behalf of O.P. No.2, which is taken on record.

3. Learned counsel for the parties have made a statement at Bar that they do not propose to file any affidavit and the application be decided at the fresh stage. Thus, with the consent of the parties, the application is being decided at the fresh stage.

4. This is an application under Section 482 of the Code of Criminal Procedure preferred by the applicant for quashing the summoning order dated 26.10.2023 and the proceedings of Complaint Case No.06/9 of 2021, X Vs. Nitin, arising out of Case Crime No.153 of 2018, under Sections 354, 323, 504 506 IPC, and under Section 3(2)5 of the SC/ST Act and U/s 3/4 of the POCSO Act, P.S. Charthawal, District Muzaffar Nagar, .

5. Learned counsel for the applicant has submitted that on 28.04.2018 at 22:43 hours, an FIR stood lodged against the applicant by the first informant, under Sections 354, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act and 3(1)XII of the SC/ST Act relatable to commission of the offences from 25- 28.04.2018 with an allegation that the first informant 'X', who is studying in Class-12 aged about 18 years along with his younger sister while on 22.02.2028 proceeding to the agricultural field while taking the food articles, where their father was ploughing the field, the applicants herein obstructed their way and showed indecent behaviour and also tried to strip off the clothes and took them in the agricultural field and when the first informant 'X' and 'Y' started screaming, then Ramesh son of Arnesh and Smt. Santalesh came for rescue and thereafter the applicant hurled caste-based abused. It is also alleged that when the mother of the first informant 'X' was doing certain household work with the help of cowdung, then the accused had hurled abuses, pursuant to which FIR was lodged. It is also argued that the dictation of the written report was taken by 'Y'. Learned counsel for the applicant has invited the attention of this Court towards Annexure-5 at page- 44 of the paper-book being the deposition under Section 161 of CrPC, so as to contend that in order to add colour, now the offences relatable to outraging modesty (rape) has also been leveled and so much so besides the statement of first informant 'X' and 'Y' has also deposed in the same manner. Learned counsel for the applicant further submits that the real brothers of the first informant, namely, Ankit and Rohit in their statements recorded under Section 161 CrPC have denied happening of any of such event and according to them, it was on account of the election rivalry, which was made the motivating factor for lodging of the FIR. Learned counsel for the applicant submits that a Final Report stood submitted against the applicant on 25.06.2018, against which the first informant submitted a protest petition on 06.10.2018. Statement under Section 200 CrPC was recorded on 17.08.2021 and thereafter the statement under Section 202 of CrPC was recorded on 31.03.2022 and thereafter on 26.10.2023, summoning order has been passed. Learned counsel for the applicant submits that besides the fact that there happens to be allegations which are not borne on record, particularly when new case has been injected in the statement under Section 164 CrPC, which was neither the case under Section 161 CrPC nor in the FIR and further there happens to be the depositions under Section 161 CrPC of the two real brothers of the first informant denying the said criminality, thus the summoning order cannot be sustained. Additionally, it has been argued that the summoning order is based upon the depositions made under Sections 161 and 164 CrPC, which apparently is an inherent defect, which goes to the root of the matter, particularly when the statement under Section 161 CrPC read with section 164 CrPC stood merged with the final report and thereafter post submission of protest petition, a complaint case stood transformed, thus what was relevant to be taken into consideration was the deposition under Sections 200 and 202 CrPC. He thus submits that the order impugned be set aside.

6. Learned A.G.A. as well as learned counsel for O.P. No.2 submit that though the offences are made out, but according to them, there happens to be inherent defect in the summoning order and the same be set aside and matter be remitted back to be again decided in light of depositions under Sections 200 and 202 of CrPC.

7. Having heard learned counsel for the parties, this Court is of the opinion that once an inherent defect going to the root of the matter, regarding the fact that depositions under Sections 200 and 202 of CrPC were to be considered while forming of an opinion regarding commission of offences for the purpose of summoning instead of the depositions under Sections 161 and 164 CrPC, then this is a case wherein the order cannot be sustained in the eyes of law.

8. Accordingly, the application is allowed.

9. The order dated 26.10.2023 passed in Complaint Case No.06/9 of 2021, X Vs. Nitin, arising out of Case Crime No.153 of 2018, under Sections 354, 323, 504 506 IPC, and under Section 3(2)5 of the SC/ST Act and U/s 3/4 of the POCSO Act, P.S. Charthawal, District Muzaffar Nagar, is set aside.

10. The matter is remitted back to the court below to pass a fresh order strictly in accordance with law. Order Date :- 19.2.2025 N.S.Rathour (Vikas Budhwar, J)