Neerja Devi v. Pinku Verma Under Section

1. Heard Sri Brijendra Kumar learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer for the State

2. Though this Court had issued notices upon the opposite party no.2 now there is an office report dated 7.8.2025 that the notice has been personally served upon the opposite party no.2. Treating the service to be sufficient and since nobody has put in appearance till the dictation of the order, the Court is proceeding with the matter on the basis of the documents available on record.

3. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding of Complaint No. 70 of 2022, Neerja Devi Vs Pinku Verma Under Section 354 Kha I.P.C. and 7/8 Protection of Children from Sexual Offences Act, 2012, Police Station Allahganj, District Shahjahanpur & also quash the summoning order Dt. 16.08.2024 passed by Additional Session Judge/Special Judge (POCSO Act), Court No. 42, Shahjahanpur.

4. The case of the applicant is that proceedings under Section 156(3) Cr.P.C. came to be lodged by the opposite party no.2- complainant on 29.6.2022 with an allegation that the opposite party no.2 is the resident of Gram Kundri, Tehsil Gurgawan, Police Station Allahganj, District Shahjahanpur and on 25.5.2022 at 7 in the evening the daughter of the opposite party no.2, who is 14 years old and minor had gone to throw the garbage and at that point of time the applicant herein with ill intentions pounced upon the victim and he pushed her on the garbage and thereafter tore the apparels which the victim was wearing and touch the private parts and when the victim made hue and cry then Jagpal son of Parnam Singh along with the opposite party no.2 reached and when they resisted then the applicant herein ran away thereafter constant efforts were made for lodging of the written report but nothing was done so on 31.5.2022 a complaint was written to the Superintendent of Police but nothing was done which entailed the opposite party no.2 to file a complaint on 29.6.2022. Post recording of the statements of the opposite party no.2 complainant under Section 200 Cr.P.C. followed by of Jagpal Singh under Section 202 Cr.P.C. Dinesh and of the victim under Section 202 Cr.P.C. the applicant herein came to be summoned on 16.8.2024 by the court of Additional Sessions Judge/Special Judge, POCSO Act, under Section 354B IPC read with Section 7/8 POCSO Act.

5. Questioning the same the present application has been preferred.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained even for a single moment. Elaborating the said submission it is submitted that the allegations contained in the complaint are not only false and incorrect but bundle of lies just in order to falsely implicate, entangle and rope in the applicant. He has further submitted that there are several major inconsistencies and variations in the statements vis-a-vis the allegation in the complaint.

7. Contention is that in the complaint the opposite party no.2 has alleged that the said offences came to be committed upon the victim on 25.5.2022 at 7 in the evening and on the raising of hue and cry the opposite party no.2 accompanied with Jagpal son of Parnam Singh had gone in the spot, however, in the statement under Section 200 Cr.P.C.of the opposite party no.2 this much has been deposed that on the hue and cry raised by the victim it was Jagpal son of Parnam Singh, who had gone and not the complainant of opposite party no.2.

8. Submission is that the said inconsistency and variations completely erode the prosecution theory. Further submission is that the date mentioned in the complaint of the incident is 25.5.2022 but in the statement under Section 200 Cr.P.C. of the complainant the same has been shown to be 22nd of 2022.

9. Learned counsel for the applicant submits that dates are under- cloud, thus the prosecution theory is unbelievable and no prudent person can come up with the stand that the incident occurred. He further submits that the victim though has been alleged to have been subjected to molestation and offences under Section 354 I.P.C. read with Section 7/8 POCSO Act but the victim was not put to medical examination, in case the victim had been put to medical examination that the truth would have surfaced. He also submits that in the complaint it is alleged that the applicant herein had touched the private parts of the victim but in the statement of the victim there is no such allegations only the allegation is about tore the apparels and assaulted. He thus submits that the court below has summoned the applicant in a routine manner without there being any recording of any prima facie satisfaction about the application/attraction of the penal sections. It is further submitted that there has been a delay in proceeding under Section 156(3) Cr.P.C. particularly when the commission of the offence has committed on 25.5.2022 but the complaint has been preferred with inordinate delay on 26.6.2022.

10. Learned State Law Officer on the other hand submits that there are no material variations in the statement of the witnesses under Sections 200 or 202 Cr.P.C. vis-a-vis the nature of the allegations in complaint, thus the case becomes triable and this Court may in view of the nature of allegations may not come to the rescue of the applicant.

11. I have heard the submissions so made across the bar and perused the record carefully.

12. Apparently, at the instance of the applicant challenge has been raised to the order dated 16.8.2024 summoning the applicant under Section 354 Kha I.P.C. and 7/8 POCSO Act. There are several parameters which are deployed for adjudging whether summoning order suffers from any legal infirmity or not and amongst others, one of the them would inevitably be the nature of the allegations contained in the complaint and the statements under Sections 200 and 202 Cr.P.C. In case there are no material contradictions which goes to the root of the matter then this Court would be reluctant in interfering. It is apparent that on 29.6.2022 a complaint stood lodged under Section 156(3) Cr.P.C. with respect to the allegation that the applicant on 25.5.2022 at 7 in the evening when the victim had gone to throw the garbage the applicant therein in a pre- planned manner and having evil intentions pounced upon the victim gave her a blow pursuant whereto she fell down on the garbage and thereafter clothes were torn and private parts were touched. So far as the submission of the learned counsel for the applicant that the dates mentioned in the complaint of the occurrence of the event is 25.5.2022 at 7 in the evening but in the the statement under Section 200 Cr.P.C. of the complainant the same has been shown to be 22 of 2022 thus it is a major contradiction which erodes the prosecution theory is concerned the same is not convincible particularly when the victim herself in her statements under Section 202 Cr.P.C. has pinpointed allegations against the applicant while coming up with the stand that the offences were committed on 25.5.2022 at 7 in the evening. More so the statement of Jagpal and Devesh are also on same line.

13. Apart from this so far as the objections raised by the counsel for the applicant that in the complaint it has been alleged that on hue and cry so raised by the victim the opposite party no.2 complainant along with Jagapl had gone there but in the statement under Section 200 Cr.P.C. it was only under Section 202 Cr.P.C. the presence of Jagpal has only been shown and not being complainant, in the opinion of the Court it is not such a material contradiction of variation which goes to the root of the matter to completely erode the prosecution theory. With respect to the submission of the learned counsel for the applicant that the complaint had been lodged on 29.6.2022 whereas the incident is dated 25.5.2022 and there is a delay in lodging the complaint is concerned the same is a matter of defence consideration whereof its impact and effect would be required to be considered when the trial commences. Moreover there happens to be a recital in the complaint that efforts were being made for lodging of the FIR and on 31.5.2022 a written complaint was lodged followed by a proceeding under Section 156(3) Cr.P.C. on 29.6.2022.

14. As regards the submission of the learned counsel for the applicant that since the victim was not subjected to medical examination, thus, the prosecution theory is bound to fail is concerned the same is not acceptable for the simple reason that the impact and the effect of non-subjection of the victim to medical examination is a question which needs consideration if raised at the time when a decision is to be taken as to whether the accused are to be acquitted or convicted. Moreover, it is always open for the applicant to question the same on the ground that adverse inference is to be drawn.

15. Looking into the case of four corners of law and also the extent of judicial intervention in the proceedings under Section 482 Cr.P.C./528 BNSS the Court does not find that prima facie the allegations in the complaint are frivolous so as to outrightly overrule the allegations. As a matter of fact the case becomes triable. Further more the extent of judicial intervention in the matters wherein challenge has been raised to the summoning order came up for consideration in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 wherein the note caution was flagged that in a routine manner interference is not to be resorted to so as to scuttle the proceedings. The case of the applicant does not fall within the the case of exceptional category so as to warrant interference.

16. Accordingly, interference is declined, application stands disposed of leaving it open to the applicants to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law.

17. Needless to point out that any observation made in the order is confined to the challenge raised to the summoning order and the same need not be construed to be an expression on the merits of the matter.

18. At this stage, learned counsel for the applicant seeks direction for bail.

19. This Court has no reason to disbelieve that in case, applicant moves appropriate proceedings before the court below for enlargement of bail, then the same may be decided with most expedition in accordance with law of the land. Order Date :- 7.8.2025 piyush

1. Heard Sri Brijendra Kumar learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer for the State

2. Though this Court had issued notices upon the opposite party no.2 now there is an office report dated 7.8.2025 that the notice has been personally served upon the opposite party no.2. Treating the service to be sufficient and since nobody has put in appearance till the dictation of the order, the Court is proceeding with the matter on the basis of the documents available on record.

3. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding of Complaint No. 70 of 2022, Neerja Devi Vs Pinku Verma Under Section 354 Kha I.P.C. and 7/8 Protection of Children from Sexual Offences Act, 2012, Police Station Allahganj, District Shahjahanpur & also quash the summoning order Dt. 16.08.2024 passed by Additional Session Judge/Special Judge (POCSO Act), Court No. 42, Shahjahanpur.

4. The case of the applicant is that proceedings under Section 156(3) Cr.P.C. came to be lodged by the opposite party no.2- complainant on 29.6.2022 with an allegation that the opposite party no.2 is the resident of Gram Kundri, Tehsil Gurgawan, Police Station Allahganj, District Shahjahanpur and on 25.5.2022 at 7 in the evening the daughter of the opposite party no.2, who is 14 years old and minor had gone to throw the garbage and at that point of time the applicant herein with ill intentions pounced upon the victim and he pushed her on the garbage and thereafter tore the apparels which the victim was wearing and touch the private parts and when the victim made hue and cry then Jagpal son of Parnam Singh along with the opposite party no.2 reached and when they resisted then the applicant herein ran away thereafter constant efforts were made for lodging of the written report but nothing was done so on 31.5.2022 a complaint was written to the Superintendent of Police but nothing was done which entailed the opposite party no.2 to file a complaint on 29.6.2022. Post recording of the statements of the opposite party no.2 complainant under Section 200 Cr.P.C. followed by of Jagpal Singh under Section 202 Cr.P.C. Dinesh and of the victim under Section 202 Cr.P.C. the applicant herein came to be summoned on 16.8.2024 by the court of Additional Sessions Judge/Special Judge, POCSO Act, under Section 354B IPC read with Section 7/8 POCSO Act.

5. Questioning the same the present application has been preferred.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained even for a single moment. Elaborating the said submission it is submitted that the allegations contained in the complaint are not only false and incorrect but bundle of lies just in order to falsely implicate, entangle and rope in the applicant. He has further submitted that there are several major inconsistencies and variations in the statements vis-a-vis the allegation in the complaint.

7. Contention is that in the complaint the opposite party no.2 has alleged that the said offences came to be committed upon the victim on 25.5.2022 at 7 in the evening and on the raising of hue and cry the opposite party no.2 accompanied with Jagpal son of Parnam Singh had gone in the spot, however, in the statement under Section 200 Cr.P.C.of the opposite party no.2 this much has been deposed that on the hue and cry raised by the victim it was Jagpal son of Parnam Singh, who had gone and not the complainant of opposite party no.2.

8. Submission is that the said inconsistency and variations completely erode the prosecution theory. Further submission is that the date mentioned in the complaint of the incident is 25.5.2022 but in the statement under Section 200 Cr.P.C. of the complainant the same has been shown to be 22nd of 2022.

9. Learned counsel for the applicant submits that dates are under- cloud, thus the prosecution theory is unbelievable and no prudent person can come up with the stand that the incident occurred. He further submits that the victim though has been alleged to have been subjected to molestation and offences under Section 354 I.P.C. read with Section 7/8 POCSO Act but the victim was not put to medical examination, in case the victim had been put to medical examination that the truth would have surfaced. He also submits that in the complaint it is alleged that the applicant herein had touched the private parts of the victim but in the statement of the victim there is no such allegations only the allegation is about tore the apparels and assaulted. He thus submits that the court below has summoned the applicant in a routine manner without there being any recording of any prima facie satisfaction about the application/attraction of the penal sections. It is further submitted that there has been a delay in proceeding under Section 156(3) Cr.P.C. particularly when the commission of the offence has committed on 25.5.2022 but the complaint has been preferred with inordinate delay on 26.6.2022.

10. Learned State Law Officer on the other hand submits that there are no material variations in the statement of the witnesses under Sections 200 or 202 Cr.P.C. vis-a-vis the nature of the allegations in complaint, thus the case becomes triable and this Court may in view of the nature of allegations may not come to the rescue of the applicant.

11. I have heard the submissions so made across the bar and perused the record carefully.

12. Apparently, at the instance of the applicant challenge has been raised to the order dated 16.8.2024 summoning the applicant under Section 354 Kha I.P.C. and 7/8 POCSO Act. There are several parameters which are deployed for adjudging whether summoning order suffers from any legal infirmity or not and amongst others, one of the them would inevitably be the nature of the allegations contained in the complaint and the statements under Sections 200 and 202 Cr.P.C. In case there are no material contradictions which goes to the root of the matter then this Court would be reluctant in interfering. It is apparent that on 29.6.2022 a complaint stood lodged under Section 156(3) Cr.P.C. with respect to the allegation that the applicant on 25.5.2022 at 7 in the evening when the victim had gone to throw the garbage the applicant therein in a pre- planned manner and having evil intentions pounced upon the victim gave her a blow pursuant whereto she fell down on the garbage and thereafter clothes were torn and private parts were touched. So far as the submission of the learned counsel for the applicant that the dates mentioned in the complaint of the occurrence of the event is 25.5.2022 at 7 in the evening but in the the statement under Section 200 Cr.P.C. of the complainant the same has been shown to be 22 of 2022 thus it is a major contradiction which erodes the prosecution theory is concerned the same is not convincible particularly when the victim herself in her statements under Section 202 Cr.P.C. has pinpointed allegations against the applicant while coming up with the stand that the offences were committed on 25.5.2022 at 7 in the evening. More so the statement of Jagpal and Devesh are also on same line.

13. Apart from this so far as the objections raised by the counsel for the applicant that in the complaint it has been alleged that on hue and cry so raised by the victim the opposite party no.2 complainant along with Jagapl had gone there but in the statement under Section 200 Cr.P.C. it was only under Section 202 Cr.P.C. the presence of Jagpal has only been shown and not being complainant, in the opinion of the Court it is not such a material contradiction of variation which goes to the root of the matter to completely erode the prosecution theory. With respect to the submission of the learned counsel for the applicant that the complaint had been lodged on 29.6.2022 whereas the incident is dated 25.5.2022 and there is a delay in lodging the complaint is concerned the same is a matter of defence consideration whereof its impact and effect would be required to be considered when the trial commences. Moreover there happens to be a recital in the complaint that efforts were being made for lodging of the FIR and on 31.5.2022 a written complaint was lodged followed by a proceeding under Section 156(3) Cr.P.C. on 29.6.2022.

14. As regards the submission of the learned counsel for the applicant that since the victim was not subjected to medical examination, thus, the prosecution theory is bound to fail is concerned the same is not acceptable for the simple reason that the impact and the effect of non-subjection of the victim to medical examination is a question which needs consideration if raised at the time when a decision is to be taken as to whether the accused are to be acquitted or convicted. Moreover, it is always open for the applicant to question the same on the ground that adverse inference is to be drawn.

15. Looking into the case of four corners of law and also the extent of judicial intervention in the proceedings under Section 482 Cr.P.C./528 BNSS the Court does not find that prima facie the allegations in the complaint are frivolous so as to outrightly overrule the allegations. As a matter of fact the case becomes triable. Further more the extent of judicial intervention in the matters wherein challenge has been raised to the summoning order came up for consideration in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 wherein the note caution was flagged that in a routine manner interference is not to be resorted to so as to scuttle the proceedings. The case of the applicant does not fall within the the case of exceptional category so as to warrant interference.

16. Accordingly, interference is declined, application stands disposed of leaving it open to the applicants to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law.

17. Needless to point out that any observation made in the order is confined to the challenge raised to the summoning order and the same need not be construed to be an expression on the merits of the matter.

18. At this stage, learned counsel for the applicant seeks direction for bail.

19. This Court has no reason to disbelieve that in case, applicant moves appropriate proceedings before the court below for enlargement of bail, then the same may be decided with most expedition in accordance with law of the land. Order Date :- 7.8.2025 piyush