High Court

1. Heard Mr. Sunil Srivastava, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Praduman @ Babu, who is a charge sheeted accused, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and to quash the charge sheet dated 06.08.2022 cognizance order as well dated 17.02.2024 alongwith entire criminal proceedings of Session Case No. 536 of 2024 (State vs. Praduman) arising out of Case Crime No. 155 of 2022, under Sections 363, 366, 376 IPC & Section 3/4 POCSO Act, Police Station Sarsawan, in the court Additional Saharanpur. District Saharanpur, pending of Special Judge, District Judge, POCSO Act/Court No.13, It is further prayed that this Hon'ble Court may be pleased to stay the further proceedings of Session Case No. 536 of 2024 (State vs. Praduman) arising out of Case Crime No. 155 of 2022, under Sections 363, 366, 376 IPC & Section 3/4 POCSO Act, Police Station Sarsawan, District Saharanpur, pending in the court of Special Judge, POCSO Act/ Additional District Judge, Court No.13, Saharanpur, during the pendency of the present application. And/or pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case, otherwise the applicant shall suffer an irreparable loss and injury."

4. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 528 BNSS has been served upon first informant opposite party No.2 on 20.04.2025. However, in spite of service of notice upon first informant opposite party-2 neither any counter affidavit has been filed by first informant/opposite party No.2 in opposition to this application nor anyone has put appearance on his behalf to oppose this application even in revised call.

5. At the very outset, the learned A.G.A. invited the attention of the Court to the order dated 23.07.2024 passed by this Court in Application under Section 482 Cr.P.C. No.19374 of 2024 (Praduman @ Pradumal @ Pradum @ Babu Vs. State of U.P. and Another) which was dismissed by this Court with liberty to applicant to file apppropriate application before the Court of competent jurisdiction. For ready reference, the order dated 23.07.2024 is reproduced hereinunder:- "Sri Pavan Kumar Mishra, learned counsel for the applicant and Sri Karunakar Singh, learned A.G.A. for the State are present. The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the entire proceeding of Special Case No. 254 of 2022 (State vs. Praduman @ Paradumal @ Pradum @ Bablu), arising out of Case Crime No. 155 of 2022, under Section 363, 366, 376 IPC and 3/4 of POCSO Act, P.S. Sarsawa, District Saharanpur, pending in the court of Additional Sessions Judge, Saharanpur. After some arguments, learned counsel for the applicant does not want to press the application and wants liberty to file a appropriate application before the court of competent jurisdiction. Certified copy of the order may be returned to the learned counsel for the applicant after retaining a xerox thereof. In view of the above, the application is dismissed as not pressed with the aforesaid liberty. "

6. On the above premise, the learned A.G.A. contends that since no leave was granted by this Court to the applicant to file fresh application under Section 482 Cr.P.C./528 BNSS, therefore, in view of the law laid down by Apex Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior and Others, (1987) 1 SCC 5, the present application is not maintainable. Learned A.G.A. then referred to the judgment of Supreme Court Superintendent of Remembrancer of Legal Affiars, West Bengal Vs. Mohan Singh and Others, (1975) 3 SCC 706. wherein the Apex Court has held that second application under Section 482 Cr.P.C. shall be maintainable provided the circumstances have changed. Referring to the affidavit filed in support of present application, the learned A.G.A. contends that since there is no change in the facts and circumstances of the case, therefore, this application shall not be maintainable.

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 A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application is clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. Therefore, this Court has no limitation concluded that present application is second application for the same cause of action and there is no change in the facts and circumstances, therefore, this application shall not be maintainable.

9. However, considering the fact that applicant has solemnized marriage with prosecutrix, as such, the prosecutrix is now the legally wedded wife of applicant coupled with the fact that affidavit filed in support of present application has been sworn by the prosecutrix herself, therefore, the proceeding impugned pending against applicant are liable to be quashed by this Court, in view of the law laid down by the Apex Court in the case of K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 105, Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433 and Criminal Appeal No.41 of 2001 (Sriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025, As such, impugned proceedings pending against applicant prima facie cannot be sustained.

10. In view of the aforesaid facts and circumstances of the case, an opportunity is granted to applicant to file a recall application seeking recall of the order dated 23.07.2024.

11. With the aforesaid directions, this application is finally disposed of. Order Date :- 23.4.2025/Imtiyaz

1. Heard Mr. Sunil Srivastava, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. Applicant-Praduman @ Babu, who is a charge sheeted accused, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and to quash the charge sheet dated 06.08.2022 cognizance order as well dated 17.02.2024 alongwith entire criminal proceedings of Session Case No. 536 of 2024 (State vs. Praduman) arising out of Case Crime No. 155 of 2022, under Sections 363, 366, 376 IPC & Section 3/4 POCSO Act, Police Station Sarsawan, in the court Additional Saharanpur. District Saharanpur, pending of Special Judge, District Judge, POCSO Act/Court No.13, It is further prayed that this Hon'ble Court may be pleased to stay the further proceedings of Session Case No. 536 of 2024 (State vs. Praduman) arising out of Case Crime No. 155 of 2022, under Sections 363, 366, 376 IPC & Section 3/4 POCSO Act, Police Station Sarsawan, District Saharanpur, pending in the court of Special Judge, POCSO Act/ Additional District Judge, Court No.13, Saharanpur, during the pendency of the present application. And/or pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the case, otherwise the applicant shall suffer an irreparable loss and injury."

4. On the matter being taken up, the learned A.G.A. submits that notice of present application under Section 528 BNSS has been served upon first informant opposite party No.2 on 20.04.2025. However, in spite of service of notice upon first informant opposite party-2 neither any counter affidavit has been filed by first informant/opposite party No.2 in opposition to this application nor anyone has put appearance on his behalf to oppose this application even in revised call.

5. At the very outset, the learned A.G.A. invited the attention of the Court to the order dated 23.07.2024 passed by this Court in Application under Section 482 Cr.P.C. No.19374 of 2024 (Praduman @ Pradumal @ Pradum @ Babu Vs. State of U.P. and Another) which was dismissed by this Court with liberty to applicant to file apppropriate application before the Court of competent jurisdiction. For ready reference, the order dated 23.07.2024 is reproduced hereinunder:- "Sri Pavan Kumar Mishra, learned counsel for the applicant and Sri Karunakar Singh, learned A.G.A. for the State are present. The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed to quash the entire proceeding of Special Case No. 254 of 2022 (State vs. Praduman @ Paradumal @ Pradum @ Bablu), arising out of Case Crime No. 155 of 2022, under Section 363, 366, 376 IPC and 3/4 of POCSO Act, P.S. Sarsawa, District Saharanpur, pending in the court of Additional Sessions Judge, Saharanpur. After some arguments, learned counsel for the applicant does not want to press the application and wants liberty to file a appropriate application before the court of competent jurisdiction. Certified copy of the order may be returned to the learned counsel for the applicant after retaining a xerox thereof. In view of the above, the application is dismissed as not pressed with the aforesaid liberty. "

6. On the above premise, the learned A.G.A. contends that since no leave was granted by this Court to the applicant to file fresh application under Section 482 Cr.P.C./528 BNSS, therefore, in view of the law laid down by Apex Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P. Gwalior and Others, (1987) 1 SCC 5, the present application is not maintainable. Learned A.G.A. then referred to the judgment of Supreme Court Superintendent of Remembrancer of Legal Affiars, West Bengal Vs. Mohan Singh and Others, (1975) 3 SCC 706. wherein the Apex Court has held that second application under Section 482 Cr.P.C. shall be maintainable provided the circumstances have changed. Referring to the affidavit filed in support of present application, the learned A.G.A. contends that since there is no change in the facts and circumstances of the case, therefore, this application shall not be maintainable.

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 A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application is clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. Therefore, this Court has no limitation concluded that present application is second application for the same cause of action and there is no change in the facts and circumstances, therefore, this application shall not be maintainable.

9. However, considering the fact that applicant has solemnized marriage with prosecutrix, as such, the prosecutrix is now the legally wedded wife of applicant coupled with the fact that affidavit filed in support of present application has been sworn by the prosecutrix herself, therefore, the proceeding impugned pending against applicant are liable to be quashed by this Court, in view of the law laid down by the Apex Court in the case of K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 105, Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433 and Criminal Appeal No.41 of 2001 (Sriram Urav Vs. State of Chhattisgarh) decided on 30.01.2025, As such, impugned proceedings pending against applicant prima facie cannot be sustained.

10. In view of the aforesaid facts and circumstances of the case, an opportunity is granted to applicant to file a recall application seeking recall of the order dated 23.07.2024.

11. With the aforesaid directions, this application is finally disposed of. Order Date :- 23.4.2025/Imtiyaz