Smt. Sarita Devi v. Janu and Others) along

1. Heard Sri V.M. Tripathi, learned counsel for the applicant and Sri S.K. Singh, learned Additional Government Advocate for the State.

2. This Court on 04.03.2025 had issued notices to Opposite Party No. 2. There is office report dated 10.04.2025 that notice served upon the Opposite Party No. 2 personally.

3. Today when the matter has been taken up in the revised list, nobody has put in appearance on behalf of Opposite Party No. 2. Since the service is sufficient upon Opposite Party No. 2 and nobody has put in appearance on her behalf thus the Court is proceeding with the matter.

4. This is an application under Section 528 BNSS filed by the applicants with a prayer to quash the entire proceedings of Special Sessions Trial No. 1152 of 2024 (Smt. Sarita Devi Vs. Janu and Others) along with summoning order dated 02.12.2024 under Sections 452, 323, 354, 504 I.P.C. and Section 7/8 of P.O.C.S.O. Act, Police Station-Shikohabad, District Firozabad, pending in the Court of Additional Sessions Judge/Additional Special Judge (P.O.C.S.O. Act), Court No. 3, Firozabad.

5. Case of the applicants is that proceeding under Section 156(3) Cr.P.C. came to be lodged by Opposite Party No. 2, complainant in the month of May, 2024 against the applicants and one another for the offences under Sections 354, 323, 504, 506, 452 I.P.C. read with Section 7/8 of the P.O.C.S.O. Act with an allegation that the Opposite Party No. 2, complainant happens to be a house wife and her husband is often out of station in connection with his business. Further allegation is that Opposite Party No. 2 stays with her minor daughter, victim who is 15 years of age. Allegation is that it had become a routine that when the victim, who happens to be daughter of Opposite Party No. 2, either goes to the school or returns from there, the applicants, acting as a gang, proceeds to pass obscene remarks and gestures and molest the victim. Allegation is to the effect that on 28.03.2024 when at 8:00 in the evening, the victim was returning from tuition to her house then the applicants herein, had surrounded her, used obscene language and pressurized the victim to go with them and the victim rescued herself and came back and narrated the said incident to her mother and when the Opposite Party No. 2 had approached the house of the applicants raising a complaint then the applicants became annoyed and they with common intention on 29.03.2024 at 08:00 P.M. in the morning, barged into the house of the Opposite Party No. 2, hurled abuses in hindi vernacular and threatened that the victim and the Opposite Party No. 2 would be harmed and they would face the music as the applicants will tarnish their image and they dragged the victim and while pushing them on the floor, beating was administered with the aid of fists and legs and when the applicants herein, proceeded to exhibit the said behavior i.e. molestation and all hue and cry being raised, the neighbors being Rakesh and Shiv Kumar along with others came there and this is how the victim could be saved from the clutches. A registered complaint was made on 14.05.2024 before the S.S.P. and since the F.I.R. was not being lodged, so proceedings under Section 156 (3) Cr.P.C. came to be lodged in the month of May, 2024.

6. Post recording of the statement of the complainant under Section 200 Cr.P.C. as well as under Section 202 Cr.P.C. of Rakesh Kumar and Shiv Kumar, the applicants herein came to be summoned by the court of Additional Sessions Judge, P.O.C.S.O. Act (Court No. 3), Shikohabad under Sections 452, 323, 354, 504 I.P.C. read with Section 7/8 of the P.O.C.S.O. Act. Questioning the summoning order, the present application has been preferred.

7. Learned counsel for the applicants has submitted that the summoning order cannot sustain for the simple reason that the entire allegations, sought to be levelled in the complaint, are false incorrect and nothing but bundle of lies just in order to entangle and rope in the applicants. Submission is that in case any indecent behavior, gesture or molestation had been done with the victim then obviously the victim might have sustained injuries but the victim was not subjected to medical examination thus adverse inference is to be drawn. Submission is also to the extent that even the complainant was also not subjected to medical examination and in absence of any medical examination, the theory so sought to be propounded by the prosecution, stands eroded. It is also submitted that the present complaint is nothing but a counter-blast retaliation as prior to it on 20.03.2021, an F.I.R. came to be lodged, being F.I.R. No. 0175 under Section 323, 324, 504 and 506 I.P.C. against Bhupendra who happens to be the son of Rakesh Kumar, by the Applicant No. 3. He also submits that the victim had not been put to medical examination which also makes the prosecution theory fatal. The submission is that the court below in a routine manner has summoned the applicants without recording any prima-facie satisfaction regarding the applicability/attraction of the penal sections.

8. Sri S.K. Singh, learned Additional Government Advocate on the other hand submits that whatever might be the statements of the witnesses under Sections 200 Cr.P.C. and 202 Cr.P.C. viz-a-viz the allegations in the complaint, contains no contradictions or variations which goes to the root of the matter which makes the case triable. He submits that there are enough evidences on record which suggest that criminality has been done.

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

10. Apparently at the instance of the applicants, challenge has been raised to the summoning order whereby the applicants have been summoned under the above noted penal sections. There are various criteria which have to be adhered to in order to determine whether the summoning order suffers from infirmity or not and one of the criteria amongst others inevitable would be the allegations contained in the complaint viz-a-viz the statements under Sections 200 and 202 of Cr.P.C. In case there are no material contradictions which go to the root of the matter, then the case becomes triable. Here in the present case, the allegation in the complaint is with regard to the incident dated 28.03.2024 and 29.03.2024 when offences are stated to have been committed by the applicants upon the victim and the Opposite Party No. 2 whereby not only indecent behavior but beating, molestation, hurling of abuses have been made. As per the learned counsel for the applicants, the victim and the Opposite Party No. 2 were not put to medical examination so adverse inference is to be drawn and further the victim did not step into the witness box. Thus, in the opinion of the Court in absence of any convincible material on record, it would not be appropriate for this Court to interfere while scuttling the proceedings but to direct the applicants to file a discharge application before the court below taking all legal and factual pleas. Accordingly, the application is being decided in the following terms: (a) The applicants shall file discharge application by 12.09.2025, taking all legal and factual grounds. (b) On the said motion, the court below shall decide the discharge application strictly in accordance with law with an independent application of mind. (c) Till the discharge application is decided, no coercive action shall be taken against the applicants in pursuance of summoning order dated 02.12.2024 under Sections 452, 323, 354, 504 I.P.C. and Section 7/8 of P.O.C.S.O. Act.

11. The benefit of the order, so passed today, would only be applicable to the applicants once the applicants comply with the terms and condition as contained in the order and does not violate any of them. In case of default, the protection shall stand vacated without referring to the Bench and court below shall proceed in accordance with law.

12. Writ Petition stands disposed of. Order Date :- 19.8.2025 A. Mandhani

1. Heard Sri V.M. Tripathi, learned counsel for the applicant and Sri S.K. Singh, learned Additional Government Advocate for the State.

2. This Court on 04.03.2025 had issued notices to Opposite Party No. 2. There is office report dated 10.04.2025 that notice served upon the Opposite Party No. 2 personally.

3. Today when the matter has been taken up in the revised list, nobody has put in appearance on behalf of Opposite Party No. 2. Since the service is sufficient upon Opposite Party No. 2 and nobody has put in appearance on her behalf thus the Court is proceeding with the matter.

4. This is an application under Section 528 BNSS filed by the applicants with a prayer to quash the entire proceedings of Special Sessions Trial No. 1152 of 2024 (Smt. Sarita Devi Vs. Janu and Others) along with summoning order dated 02.12.2024 under Sections 452, 323, 354, 504 I.P.C. and Section 7/8 of P.O.C.S.O. Act, Police Station-Shikohabad, District Firozabad, pending in the Court of Additional Sessions Judge/Additional Special Judge (P.O.C.S.O. Act), Court No. 3, Firozabad.

5. Case of the applicants is that proceeding under Section 156(3) Cr.P.C. came to be lodged by Opposite Party No. 2, complainant in the month of May, 2024 against the applicants and one another for the offences under Sections 354, 323, 504, 506, 452 I.P.C. read with Section 7/8 of the P.O.C.S.O. Act with an allegation that the Opposite Party No. 2, complainant happens to be a house wife and her husband is often out of station in connection with his business. Further allegation is that Opposite Party No. 2 stays with her minor daughter, victim who is 15 years of age. Allegation is that it had become a routine that when the victim, who happens to be daughter of Opposite Party No. 2, either goes to the school or returns from there, the applicants, acting as a gang, proceeds to pass obscene remarks and gestures and molest the victim. Allegation is to the effect that on 28.03.2024 when at 8:00 in the evening, the victim was returning from tuition to her house then the applicants herein, had surrounded her, used obscene language and pressurized the victim to go with them and the victim rescued herself and came back and narrated the said incident to her mother and when the Opposite Party No. 2 had approached the house of the applicants raising a complaint then the applicants became annoyed and they with common intention on 29.03.2024 at 08:00 P.M. in the morning, barged into the house of the Opposite Party No. 2, hurled abuses in hindi vernacular and threatened that the victim and the Opposite Party No. 2 would be harmed and they would face the music as the applicants will tarnish their image and they dragged the victim and while pushing them on the floor, beating was administered with the aid of fists and legs and when the applicants herein, proceeded to exhibit the said behavior i.e. molestation and all hue and cry being raised, the neighbors being Rakesh and Shiv Kumar along with others came there and this is how the victim could be saved from the clutches. A registered complaint was made on 14.05.2024 before the S.S.P. and since the F.I.R. was not being lodged, so proceedings under Section 156 (3) Cr.P.C. came to be lodged in the month of May, 2024.

6. Post recording of the statement of the complainant under Section 200 Cr.P.C. as well as under Section 202 Cr.P.C. of Rakesh Kumar and Shiv Kumar, the applicants herein came to be summoned by the court of Additional Sessions Judge, P.O.C.S.O. Act (Court No. 3), Shikohabad under Sections 452, 323, 354, 504 I.P.C. read with Section 7/8 of the P.O.C.S.O. Act. Questioning the summoning order, the present application has been preferred.

7. Learned counsel for the applicants has submitted that the summoning order cannot sustain for the simple reason that the entire allegations, sought to be levelled in the complaint, are false incorrect and nothing but bundle of lies just in order to entangle and rope in the applicants. Submission is that in case any indecent behavior, gesture or molestation had been done with the victim then obviously the victim might have sustained injuries but the victim was not subjected to medical examination thus adverse inference is to be drawn. Submission is also to the extent that even the complainant was also not subjected to medical examination and in absence of any medical examination, the theory so sought to be propounded by the prosecution, stands eroded. It is also submitted that the present complaint is nothing but a counter-blast retaliation as prior to it on 20.03.2021, an F.I.R. came to be lodged, being F.I.R. No. 0175 under Section 323, 324, 504 and 506 I.P.C. against Bhupendra who happens to be the son of Rakesh Kumar, by the Applicant No. 3. He also submits that the victim had not been put to medical examination which also makes the prosecution theory fatal. The submission is that the court below in a routine manner has summoned the applicants without recording any prima-facie satisfaction regarding the applicability/attraction of the penal sections.

8. Sri S.K. Singh, learned Additional Government Advocate on the other hand submits that whatever might be the statements of the witnesses under Sections 200 Cr.P.C. and 202 Cr.P.C. viz-a-viz the allegations in the complaint, contains no contradictions or variations which goes to the root of the matter which makes the case triable. He submits that there are enough evidences on record which suggest that criminality has been done.

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

10. Apparently at the instance of the applicants, challenge has been raised to the summoning order whereby the applicants have been summoned under the above noted penal sections. There are various criteria which have to be adhered to in order to determine whether the summoning order suffers from infirmity or not and one of the criteria amongst others inevitable would be the allegations contained in the complaint viz-a-viz the statements under Sections 200 and 202 of Cr.P.C. In case there are no material contradictions which go to the root of the matter, then the case becomes triable. Here in the present case, the allegation in the complaint is with regard to the incident dated 28.03.2024 and 29.03.2024 when offences are stated to have been committed by the applicants upon the victim and the Opposite Party No. 2 whereby not only indecent behavior but beating, molestation, hurling of abuses have been made. As per the learned counsel for the applicants, the victim and the Opposite Party No. 2 were not put to medical examination so adverse inference is to be drawn and further the victim did not step into the witness box. Thus, in the opinion of the Court in absence of any convincible material on record, it would not be appropriate for this Court to interfere while scuttling the proceedings but to direct the applicants to file a discharge application before the court below taking all legal and factual pleas. Accordingly, the application is being decided in the following terms: (a) The applicants shall file discharge application by 12.09.2025, taking all legal and factual grounds. (b) On the said motion, the court below shall decide the discharge application strictly in accordance with law with an independent application of mind. (c) Till the discharge application is decided, no coercive action shall be taken against the applicants in pursuance of summoning order dated 02.12.2024 under Sections 452, 323, 354, 504 I.P.C. and Section 7/8 of P.O.C.S.O. Act.

11. The benefit of the order, so passed today, would only be applicable to the applicants once the applicants comply with the terms and condition as contained in the order and does not violate any of them. In case of default, the protection shall stand vacated without referring to the Bench and court below shall proceed in accordance with law.

12. Writ Petition stands disposed of. Order Date :- 19.8.2025 A. Mandhani