High Court

1. Heard Sri Vishveshwar Mani Tripathi (AoR A/V 0595/2020) holding brief of Sri Vinay Kumar Mishra, learned counsel for the applicants and Sri Kripa Shankar, learned AGA for the State.

2. This Court on 23.05.2025 issued notices upon the opposite parties no. 2 and 4 and there is an office report dated 12.06.2025 that the notices have been served upon the opposite parties, as per the report of the CJM, Gorakhpur, nobody has appeared till the dictation of the order.

3. Learned counsel for the applicants as well as learned AGA has made a statement at bar that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is decided at the fresh stage.

4. The case of the applicants is that proceedings under Section 156(3) was lodged by the opposite party no. 2-complainant before the Court of Additional Sessions Judge, POCSO Act, Court No. 1, Gorakhpur on 19.11.2021 with an allegation that the opposite party no. 2 is the resident of Balbhiti, P.S. Barhalganj, District Gorakhpur, her husband and her son both are working as labours who are out of town and the allegation is that the applicant no. 1 who happens to be the pattidar of the opposite party no. 2 is a politician having resources who on each and every point of time commits atrocities and maltreats the opposite party no. 2 pursuant whereto report had also been lodged before the police station. It is alleged that the opposite party no. 2 is staying all alone with her daughter, victim who is aged about 12 years and the applicant no. 1 takes advantage of the same and pressurizes to be physical with them. On 23.10.2018 at 6:00 p.m. when the opposite party no. 2 was all alone in the house and was doing certain work relating to preparing food then the opposite party no. 2-complainant heard the hue and cry of the victim and on hearing the same, the opposite party no. 2 ran towards the victim then she found that the applicant no. 1 was pressing the breast of the victim and he had also disrobed the victim and the applicants no. 2 and 3 who were of the same village were standing on the door guarding the movement of the public and when the opposite party no. 2 ran to save her daughter, victim, then the applicant no. 1 pushed her and the applicant nos 2 and 3 came into the room and the applicant no. 2 gave a blow to the opposite party no. 2 and attempted to outrage the modesty of the opposite party no. 2 and the applicant no. 1 to commit the offence of outraging the modesty and the applicant no. 3 had beaten the opposite party no. 2 on her breast and thereafter on the hue and cry so made, the villagers came there and the applicants ran away while hurling abuses, a complaint to the said effect was made before the SSP on 26.10.2018 followed by another complaint which came to be rejected on 20.09.2021. Thereafter, the present proceedings under Section 156(3) Cr.P.C. stood allowed on 19.11.2021. Post recording of the statements of the opposite party no. 2 under Section 200, Shrawan Kumar, Section 202, Pradumn being the maternal nephew of the opposite party no. 2 under Section 202 and the victim under Section 202, the applicant no. 1 came to be summoned on 12.09.2024 under Section 354 read with Section 7/8 of the POCSO Act and the applicant nos. 2 and 3 under Section 354 of the IPC.

5. Questioning the summoning order, the present application has been preferred.

6. Learned counsel for the applicant has submitted that the entire allegations so sought to be levelled in the complaint are nothing but a bundle of lies as though the incident is dated 23.10.2018 at 6:00 p.m. but even prior to it an FIR came to be lodged on 23.10.2018 being FIR No. 0468 of 2018 under Sections 147, 148, 323, 307, 504, 506 IPC by the applicant no. 1 against the applicant nos. 2 and her husband Lapetan. Learned counsel for the applicants has also submitted that the opposite party no. 2 was not subjected to any medical examination and had the opposite party no. 2 being subjected to medical examination the truth would have surfaced. He submits that the present complaint is nothing but a counter blast and her retaliation in that regard. Further submission is that proceedings under Section 156(3) Cr.P.C. was also instituted by the opposite party no. 2 with respect to the same allegations which are part and parcel of the present complaint but the said complaint stood dismissed for non prosecution and now this complaint has been preferred. Learned counsel for the applicants seeks discharge.

7. Learned AGA, on the other hand, submits that a close look of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 Cr.P.C. would show that prima facie offences are made out as there are no material contradictions in that regard. Submission is that the case is triable and whatever arguments are being sought to be raised they are the matter of defence consideration whereof would if necessitated would be at this stage when the trial commences.

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

9. At the instance of the applicants, challenge has been raised to the summoning order whereby the applicant no. 1 had been summoned under Section 354 read with Section 7/8 of the POCSO Act and applicants no. 2 and 3 under Section 354 IPC. There are certain criteria who have to be adhered in order to determine as to whether the summoning order suffers from infirmity or not. Amongst others, one of the criteria inevitably would be the nature of the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 of the Cr.P.C. and, in case, there are no material contradictions and the witnesses support the prosecution theory then the Courts would have reluctant in interfering. In the present case in hand the complaint alleges commissinon of offences on 23.10.2018 at 6:00 in the evening with the applicant and with the opposite party no. 2 and her daughter as pin pointed allegations have been made against the applicant no. 1 with relation to pressing the breast of the daughter of the opposite party no. 2 and disrobing her and with respect to applicants no. 2 and 3 they were assigned the role in the complaint to have been guarding while being standing on the door and when the opposite party no. 2 entered the place where the offences are being committed by the applicant no. 1 with her daughter then the applicant no. 1 give a blow pursuant whereto the opposite party no. 2 fell down and he also attempted to outrage the modesty and the applicant no. 3 even had beaten on the breast of the opposite party no. 2. The statement of the opposite party no. 2-complainant under Section 200 are intact and it supports the prosecution theory and so much so the statement of Shrawan Kumar and Pradumn are also on the same line and the victim has also narrated the said incident and supported the story.

10. Accordingly, prima facie, the case becomes triable as regards the submission that opposite party no. 2 or the victim was not subjected to medical examination is concerned and, thus, the prosecution story would fall is not convincible particularly when the impact and the effect of non subjection of medical examination of the victim and the opposite party no. 2 would have its own effect and impact when the trial commences when a decision is to be taken as to whether the accused are to be acquitted or convicted. Nonetheless the theory so sought to be propounded regarding lodging of the first information report is concerned, the same is a matter of defence consideration whereof would be required when the trial commences.

11. Further submission of the learned counsel for the applicants is that the summoning order is cryptic and it does not recite the case of the complainant and there is no, prima facie, satisfaction accorded by the court below. In the opinion of the Court though the summoning order dated 12.09.2024 is not happily worded but it takes into ambit the case of the complainant and the brief synopsis or reference of the statements of the witnesses under Section 200 and 202 of the Cr.P.C.

12. Insofar as the argument so raised by the learned counsel for the applicants that when the earlier complaint stood preferred which ultimately was dismissed for non prosecution, a police report was called wherein the police opined that there was a pattidar dispute between the parties, thus, there is no veracity to the allegations. In the opinion of the Court, this Court is not required to delve into the said issues at this stage and consideration would arise when the trial commences.

13. Accordingly, no case for interference is made out, the application is disposed of leaving it open to the applicants to prefer appropriate for discharge and, in case, such application is preferred, this Court has no reason to disbelieve that the same shall be given a logical end strictly in accordance with law of the land. Order Date :- 11.7.2025 Rajesh

1. Heard Sri Vishveshwar Mani Tripathi (AoR A/V 0595/2020) holding brief of Sri Vinay Kumar Mishra, learned counsel for the applicants and Sri Kripa Shankar, learned AGA for the State.

2. This Court on 23.05.2025 issued notices upon the opposite parties no. 2 and 4 and there is an office report dated 12.06.2025 that the notices have been served upon the opposite parties, as per the report of the CJM, Gorakhpur, nobody has appeared till the dictation of the order.

3. Learned counsel for the applicants as well as learned AGA has made a statement at bar that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is decided at the fresh stage.

4. The case of the applicants is that proceedings under Section 156(3) was lodged by the opposite party no. 2-complainant before the Court of Additional Sessions Judge, POCSO Act, Court No. 1, Gorakhpur on 19.11.2021 with an allegation that the opposite party no. 2 is the resident of Balbhiti, P.S. Barhalganj, District Gorakhpur, her husband and her son both are working as labours who are out of town and the allegation is that the applicant no. 1 who happens to be the pattidar of the opposite party no. 2 is a politician having resources who on each and every point of time commits atrocities and maltreats the opposite party no. 2 pursuant whereto report had also been lodged before the police station. It is alleged that the opposite party no. 2 is staying all alone with her daughter, victim who is aged about 12 years and the applicant no. 1 takes advantage of the same and pressurizes to be physical with them. On 23.10.2018 at 6:00 p.m. when the opposite party no. 2 was all alone in the house and was doing certain work relating to preparing food then the opposite party no. 2-complainant heard the hue and cry of the victim and on hearing the same, the opposite party no. 2 ran towards the victim then she found that the applicant no. 1 was pressing the breast of the victim and he had also disrobed the victim and the applicants no. 2 and 3 who were of the same village were standing on the door guarding the movement of the public and when the opposite party no. 2 ran to save her daughter, victim, then the applicant no. 1 pushed her and the applicant nos 2 and 3 came into the room and the applicant no. 2 gave a blow to the opposite party no. 2 and attempted to outrage the modesty of the opposite party no. 2 and the applicant no. 1 to commit the offence of outraging the modesty and the applicant no. 3 had beaten the opposite party no. 2 on her breast and thereafter on the hue and cry so made, the villagers came there and the applicants ran away while hurling abuses, a complaint to the said effect was made before the SSP on 26.10.2018 followed by another complaint which came to be rejected on 20.09.2021. Thereafter, the present proceedings under Section 156(3) Cr.P.C. stood allowed on 19.11.2021. Post recording of the statements of the opposite party no. 2 under Section 200, Shrawan Kumar, Section 202, Pradumn being the maternal nephew of the opposite party no. 2 under Section 202 and the victim under Section 202, the applicant no. 1 came to be summoned on 12.09.2024 under Section 354 read with Section 7/8 of the POCSO Act and the applicant nos. 2 and 3 under Section 354 of the IPC.

5. Questioning the summoning order, the present application has been preferred.

6. Learned counsel for the applicant has submitted that the entire allegations so sought to be levelled in the complaint are nothing but a bundle of lies as though the incident is dated 23.10.2018 at 6:00 p.m. but even prior to it an FIR came to be lodged on 23.10.2018 being FIR No. 0468 of 2018 under Sections 147, 148, 323, 307, 504, 506 IPC by the applicant no. 1 against the applicant nos. 2 and her husband Lapetan. Learned counsel for the applicants has also submitted that the opposite party no. 2 was not subjected to any medical examination and had the opposite party no. 2 being subjected to medical examination the truth would have surfaced. He submits that the present complaint is nothing but a counter blast and her retaliation in that regard. Further submission is that proceedings under Section 156(3) Cr.P.C. was also instituted by the opposite party no. 2 with respect to the same allegations which are part and parcel of the present complaint but the said complaint stood dismissed for non prosecution and now this complaint has been preferred. Learned counsel for the applicants seeks discharge.

7. Learned AGA, on the other hand, submits that a close look of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 Cr.P.C. would show that prima facie offences are made out as there are no material contradictions in that regard. Submission is that the case is triable and whatever arguments are being sought to be raised they are the matter of defence consideration whereof would if necessitated would be at this stage when the trial commences.

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

9. At the instance of the applicants, challenge has been raised to the summoning order whereby the applicant no. 1 had been summoned under Section 354 read with Section 7/8 of the POCSO Act and applicants no. 2 and 3 under Section 354 IPC. There are certain criteria who have to be adhered in order to determine as to whether the summoning order suffers from infirmity or not. Amongst others, one of the criteria inevitably would be the nature of the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 of the Cr.P.C. and, in case, there are no material contradictions and the witnesses support the prosecution theory then the Courts would have reluctant in interfering. In the present case in hand the complaint alleges commissinon of offences on 23.10.2018 at 6:00 in the evening with the applicant and with the opposite party no. 2 and her daughter as pin pointed allegations have been made against the applicant no. 1 with relation to pressing the breast of the daughter of the opposite party no. 2 and disrobing her and with respect to applicants no. 2 and 3 they were assigned the role in the complaint to have been guarding while being standing on the door and when the opposite party no. 2 entered the place where the offences are being committed by the applicant no. 1 with her daughter then the applicant no. 1 give a blow pursuant whereto the opposite party no. 2 fell down and he also attempted to outrage the modesty and the applicant no. 3 even had beaten on the breast of the opposite party no. 2. The statement of the opposite party no. 2-complainant under Section 200 are intact and it supports the prosecution theory and so much so the statement of Shrawan Kumar and Pradumn are also on the same line and the victim has also narrated the said incident and supported the story.

10. Accordingly, prima facie, the case becomes triable as regards the submission that opposite party no. 2 or the victim was not subjected to medical examination is concerned and, thus, the prosecution story would fall is not convincible particularly when the impact and the effect of non subjection of medical examination of the victim and the opposite party no. 2 would have its own effect and impact when the trial commences when a decision is to be taken as to whether the accused are to be acquitted or convicted. Nonetheless the theory so sought to be propounded regarding lodging of the first information report is concerned, the same is a matter of defence consideration whereof would be required when the trial commences.

11. Further submission of the learned counsel for the applicants is that the summoning order is cryptic and it does not recite the case of the complainant and there is no, prima facie, satisfaction accorded by the court below. In the opinion of the Court though the summoning order dated 12.09.2024 is not happily worded but it takes into ambit the case of the complainant and the brief synopsis or reference of the statements of the witnesses under Section 200 and 202 of the Cr.P.C.

12. Insofar as the argument so raised by the learned counsel for the applicants that when the earlier complaint stood preferred which ultimately was dismissed for non prosecution, a police report was called wherein the police opined that there was a pattidar dispute between the parties, thus, there is no veracity to the allegations. In the opinion of the Court, this Court is not required to delve into the said issues at this stage and consideration would arise when the trial commences.

13. Accordingly, no case for interference is made out, the application is disposed of leaving it open to the applicants to prefer appropriate for discharge and, in case, such application is preferred, this Court has no reason to disbelieve that the same shall be given a logical end strictly in accordance with law of the land. Order Date :- 11.7.2025 Rajesh