Karuna Shankar v. State of UP, AND Impugned order dated

applicant, the learned AGA for State-opposite party-1 and Mr. Anurag Mishra, Advocate who has put in appearance on behalf of first informant opposite party-2 by filing his 'Vakalatnama' in Court today which is taken on record.

2. Perused the record.

3. Applicant- Karuna Shankar Gupta, who is a charge-sheeted accused and facing trial before court below has approached this Court by means of present application under Section 528 BNSS with the following prayer: "It is, therefore, most respectfully prayed that in view of the facts and circumstances accompanied/elaborated in the accompanying 528 application supported by affidavit, it is expedient that Hon'ble Court may graciously be pleased to quash /set-aside- A. Impugned Order dated 30.01.2025 passed by Additional District and Session Judge, (Special Court Land Acquisition Officer) Court No. 02 Varanasi passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State of UP, AND Impugned order dated 13.05.2024 passed by Chief Judicial Magistrate Varanasi Court No. 03, Varanasi passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State of U.P. arising out of FIR dated 06.10.2020 having Case Crime No. 504/2020 under section 323, 406, 376, 511 IPC, Police Station Bhelupur, District Varanasi. B. No coercive action be taken against applicant pursuant to summoning order dated 13.05.2024 passed by Chief Judicial Magistrate Varanasi Court No. 03, Varanasi passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State of UP AND affirmed by impugned order dated 30.01.2025 passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State of UP, whereby applicant has been summoned under section 376, 506 IPC. C. Further stay the effect an operation of impugned order dated 30.01.2025 passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State AND impugned order dated 13.05.2024 passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State, during the pendency of present application. D. Stay the further proceeding of Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State arising out of FIR dated 06.10.2020 having Case Crime No. 504/2020 under section 323, 406, 376, 511 IPC, Police Station Bhelupur, District Varanasi, during the pendency of present application. OR/AND pass any other order as deemed fit and proper in the facts of the case."

4. Present application came up for admission on 03.03.2025 and this Court passed the following order: "1. Heard Mr. Saurabh Raj Srivastava, the learned counsel for applicant, the learned AGA for State and Mr. Chandra Shekhar Singh, the learned counsel for first informant-opposite party no.2.

2. After some argument, it transpires that the earlier application under Section 216 Cr.P.C. filed by the prosecutrix/first informant/opposite party no.2 was rejected by court below vide order dated 07.08.2023, primarily on the ground that unless and until the doctor who had medically examined the prosecutrix during course of investigation is examined by the Court, the charges framed against accused cannot be altered. However, subsequently, by means of the impugned order, court below has altered the charge framed against applicant-accused without recording a finding that the offence under Section 376 IPC is also made out against the applicant as per the deposition of Medical Officer.

3. Learned counsel representing first informant/opposite party no.2 seeks time to seek instructions in the matter.

4. In view of the above, put up again as fresh on 10.03.2025."

5. On the matter being taken up today, the learned AGA representing State-opposite party-1 fairly submits that the doctor who had medically examined the prosecutrix has not yet deposed before court below. On the above premise, the learned counsel for applicant submits that the order impugned in present application is unsustainable in law and consequently, the same is liable to be quashed by this Court. According to the learned counsel for applicant, once the court below had itself returned a finding vide order dated 07.08.2023 that the issue regarding alteration of charge shall be considered only after deposition of the doctor who had medically examined the prosecutrix is recorded, then court below itself could not ignore the aforesaid order and proceed to alter the charge on the application of the first informant/prosecutrix even when the doctor who had medically examined the prosecutrix has not yet deposed before court below. On the above premise, he therefore submits that the order impugned in present application is manifestly illegal and arbitrary, and therefore, the same is liable to be set aside by this Court.

6. Per contra, the learned AGA representing State-opposite party-1 and the learned counsel representing first informant opposite party-2 have vehementally opposed the present application. They submit that jurisdiction under Section 216 Cr.P.C. is the discretion of Court. The Apex Court in catena of decisions has already held that a superior Court should not interfere in the discretion exercised by the trial court. Even otherwise the prosecutrix has already deposed before court below as PW-1. The prosecutrix in her deposition before court below has clearly implicated the accused applicant for an offence punishable under Section 376 IPC. On the above premise, it is thus urged by the learned AGA that even otherwise sufficient material exist on record to alter the charge framed against accused application under Section 376 IPC also. On the above premise, the learned AGA submits that irrespective of the irregularity committed by Court below in passing the order impugned, substantially, the order impugned is legally sustainable. As such no interference is warranted by this Court.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard the learned counsel for applicant, the learned AGA representing State-opposite party-1, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. and the learned counsel representing first informant opposite party-2 in opposition to this application are not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application.

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

10. It is, accordingly, dismissed. Order Date :- 22.4.2025 R.S. Tiwari

applicant, the learned AGA for State-opposite party-1 and Mr. Anurag Mishra, Advocate who has put in appearance on behalf of first informant opposite party-2 by filing his 'Vakalatnama' in Court today which is taken on record.

2. Perused the record.

3. Applicant- Karuna Shankar Gupta, who is a charge-sheeted accused and facing trial before court below has approached this Court by means of present application under Section 528 BNSS with the following prayer: "It is, therefore, most respectfully prayed that in view of the facts and circumstances accompanied/elaborated in the accompanying 528 application supported by affidavit, it is expedient that Hon'ble Court may graciously be pleased to quash /set-aside- A. Impugned Order dated 30.01.2025 passed by Additional District and Session Judge, (Special Court Land Acquisition Officer) Court No. 02 Varanasi passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State of UP, AND Impugned order dated 13.05.2024 passed by Chief Judicial Magistrate Varanasi Court No. 03, Varanasi passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State of U.P. arising out of FIR dated 06.10.2020 having Case Crime No. 504/2020 under section 323, 406, 376, 511 IPC, Police Station Bhelupur, District Varanasi. B. No coercive action be taken against applicant pursuant to summoning order dated 13.05.2024 passed by Chief Judicial Magistrate Varanasi Court No. 03, Varanasi passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State of UP AND affirmed by impugned order dated 30.01.2025 passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State of UP, whereby applicant has been summoned under section 376, 506 IPC. C. Further stay the effect an operation of impugned order dated 30.01.2025 passed in Criminal Revision No. 241 of 2024 Karuna Shankar Vs. State AND impugned order dated 13.05.2024 passed in Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State, during the pendency of present application. D. Stay the further proceeding of Criminal Case No. 7321 of 2022 Karuna Shankar Vs. State arising out of FIR dated 06.10.2020 having Case Crime No. 504/2020 under section 323, 406, 376, 511 IPC, Police Station Bhelupur, District Varanasi, during the pendency of present application. OR/AND pass any other order as deemed fit and proper in the facts of the case."

4. Present application came up for admission on 03.03.2025 and this Court passed the following order: "1. Heard Mr. Saurabh Raj Srivastava, the learned counsel for applicant, the learned AGA for State and Mr. Chandra Shekhar Singh, the learned counsel for first informant-opposite party no.2.

2. After some argument, it transpires that the earlier application under Section 216 Cr.P.C. filed by the prosecutrix/first informant/opposite party no.2 was rejected by court below vide order dated 07.08.2023, primarily on the ground that unless and until the doctor who had medically examined the prosecutrix during course of investigation is examined by the Court, the charges framed against accused cannot be altered. However, subsequently, by means of the impugned order, court below has altered the charge framed against applicant-accused without recording a finding that the offence under Section 376 IPC is also made out against the applicant as per the deposition of Medical Officer.

3. Learned counsel representing first informant/opposite party no.2 seeks time to seek instructions in the matter.

4. In view of the above, put up again as fresh on 10.03.2025."

5. On the matter being taken up today, the learned AGA representing State-opposite party-1 fairly submits that the doctor who had medically examined the prosecutrix has not yet deposed before court below. On the above premise, the learned counsel for applicant submits that the order impugned in present application is unsustainable in law and consequently, the same is liable to be quashed by this Court. According to the learned counsel for applicant, once the court below had itself returned a finding vide order dated 07.08.2023 that the issue regarding alteration of charge shall be considered only after deposition of the doctor who had medically examined the prosecutrix is recorded, then court below itself could not ignore the aforesaid order and proceed to alter the charge on the application of the first informant/prosecutrix even when the doctor who had medically examined the prosecutrix has not yet deposed before court below. On the above premise, he therefore submits that the order impugned in present application is manifestly illegal and arbitrary, and therefore, the same is liable to be set aside by this Court.

6. Per contra, the learned AGA representing State-opposite party-1 and the learned counsel representing first informant opposite party-2 have vehementally opposed the present application. They submit that jurisdiction under Section 216 Cr.P.C. is the discretion of Court. The Apex Court in catena of decisions has already held that a superior Court should not interfere in the discretion exercised by the trial court. Even otherwise the prosecutrix has already deposed before court below as PW-1. The prosecutrix in her deposition before court below has clearly implicated the accused applicant for an offence punishable under Section 376 IPC. On the above premise, it is thus urged by the learned AGA that even otherwise sufficient material exist on record to alter the charge framed against accused application under Section 376 IPC also. On the above premise, the learned AGA submits that irrespective of the irregularity committed by Court below in passing the order impugned, substantially, the order impugned is legally sustainable. As such no interference is warranted by this Court.

7. When confronted with above, the learned counsel for applicant could not overcome the same.

8. Having heard the learned counsel for applicant, the learned AGA representing State-opposite party-1, the learned counsel representing first informant opposite party-2 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. and the learned counsel representing first informant opposite party-2 in opposition to this application are not only borne out from the record, but furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. In view of above, no good ground exists to entertain the present application.

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

10. It is, accordingly, dismissed. Order Date :- 22.4.2025 R.S. Tiwari