Shakuntala v. Ravindra Gautam & another), under sections

Though constant efforts was made for loding of the first information report but nothing was done thereafter written complaint was made through registered post to the police on

03.02.2024 followed by the proceedings under Section 156(3) on

13.02.2024. The court below on 29.04.2024 treated the case as a complaint case and post recording of the statement of the opposite party no. 2 complainant under Section 200 followed by of the victim under Section 202, Hemraj, Arvind. The applicants herein came to be summoned by the court of Additional Sessions Judge, Special Judge, POCSO Act, Budau under Sections 76, 115(2), 333 of BNS read with Section 7/8 of the POCSO Act.

5. Questioning the summoning order, the applicants have filed the present application.

6. Learned counsel for the applicant has submitted that the allegations contained in the complaint are false, incorrect and bundle of lies just in order to falsely implicate the applicants. Submission is that no such incident occurred and further the victim was also not subjected to medical and had the medical been done, the truth would have surfaced and, thus, adverse inference is to be drawn. Further submission is that there happens to be animosity and a rivalry and friction between the applicants faction and the opposite party no. 2 faction as he seeks to rely upon a document which happens to be a police report, Annexure-6 at page 50, wherein on the basis of the good offices so extended by the applicants faction, compromise stood entered and certain amount was to be paid in lieu of compromise which became a motivating factor for lodging the complaint. He further submits that the entire statements under Sections 200 and 202 are tailor-made just in order to suit the circumstances in favour of the prosecution. He also submits that the court below had summoned the applicants in a routine manner without according satisfaction of prima facie application of the penal sections.

7. Learned State Law Officer, on the other hand, submits that whatever might since there are no material contradictions or variations in statements under sections 200 and 202 vis-a-vis the allegations in the complaint, thus, the case becomes triable and further whatever arguments are being sought to be raised with regard to the good books offered by the applicants faction for getting the settlement done they are at best defences consideration whereof would be required only when the trial commences.

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

9. Apparently, at the instance of the applicants challenge has been raised to the summoning order. There are certain criteria who have to be adhered to in order to determine as to whether the summoning order suffers from legal infirmity or not. Amongst others, one of the criteria would be inevitably the nature of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 of the Cr.P.C. In case, there are material contradictions or variations which go to the root of the matter then the courts would not be reluctant in interfering.

10. Applying the said principles of law in the facts of the case, it emerges that on 29.01.2024, the opposite party no. 2 who happens to be the grand mother of victim had lodged a complaint pin pointing the involvement of the applicants for attributing criminality particularly when the allegation is that the victim was all alone in the house and the applicants herein barged into the house and, thereafter, tore the clothes of the victim, disrobed her and she was made naked. Thereafter, when on the hue and cry being raised, the opposite party no. 2 and others came to the spot then the applicants hurled abuses and ran away and when attempt was being made to get the FIR lodged while approaching the police station then the applicants herein gathered as a gang and hurled abuses and with the aid of fists and legs inflicted injuries. The statement of the complainant under Section 200 and of the other witnesses including testimony of the victim itself pin points allegations against the applicants. Once being so the case becomes triable in the background of the fact that there are no material contradictions or variations so as to thoroughly overrule the possibility of the occurrence of the event. So far as the argument raised by the learned counsel for the applicants that the victim was not subjected to medical examination, thus, the prosecution theory would fail is not convincible at the stage when the summoning is subject matter of challenge as its impact and effects are to be seen when the trial commences when decision is to be taken whether it is a case of conviction or acquittal. As regards the submission of the learned counsel for the applicants that there happen to be a motivating factor which became the basis for lodging of the false complaint i.e. with relation to offering of the good offices pursuant whereto settlement was accorded. This Court, at this stage, is not required to delve into as at best it is a defence consideration whereof would be necessitated if raised at the stage when the trial commences. Moreover, there is another aspect of the matter which would be relevant to be noticed i.e. Section 29 of the POCSO Act according to which there is a presumption as to certain offences. Section 29 deals with presumption as to certain offences according to which where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be 'unless the contrary is proved'. The word employed by the legislature 'unless the contrary is proved' pre-supposes trial and, thus, the case becomes trial.

11. Cumulatively analysing the case from the four corners of law, this Court does not find the present case to be a fit case for exercise of inherent jurisdiction u/s 528 BNSS particularly, a note of caution has been flagged by the Hon’ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 that the court should not in a routine manner interfere and scuttle the proceedings. Since there is nothing exceptional in the case so as to warrant interference, thus, interference is declined, the application stands disposed of leaving it open for the applicant to contest the trial and to take all legal and factual grounds which the Court has no reasons to disbelieve that the same shall be considered in accordance with law.

12. The passing of the order today may not be construed to be an expression that this Court has adjudicated on the merits of the allegations and whatever observations are, they are subject to the challenge raised to the summoning order and the trial court shall proceed to decide the trial in accordance with law. Order Date :- 1.8.2025 Rajesh

Though constant efforts was made for loding of the first information report but nothing was done thereafter written complaint was made through registered post to the police on

03.02.2024 followed by the proceedings under Section 156(3) on

13.02.2024. The court below on 29.04.2024 treated the case as a complaint case and post recording of the statement of the opposite party no. 2 complainant under Section 200 followed by of the victim under Section 202, Hemraj, Arvind. The applicants herein came to be summoned by the court of Additional Sessions Judge, Special Judge, POCSO Act, Budau under Sections 76, 115(2), 333 of BNS read with Section 7/8 of the POCSO Act.

5. Questioning the summoning order, the applicants have filed the present application.

6. Learned counsel for the applicant has submitted that the allegations contained in the complaint are false, incorrect and bundle of lies just in order to falsely implicate the applicants. Submission is that no such incident occurred and further the victim was also not subjected to medical and had the medical been done, the truth would have surfaced and, thus, adverse inference is to be drawn. Further submission is that there happens to be animosity and a rivalry and friction between the applicants faction and the opposite party no. 2 faction as he seeks to rely upon a document which happens to be a police report, Annexure-6 at page 50, wherein on the basis of the good offices so extended by the applicants faction, compromise stood entered and certain amount was to be paid in lieu of compromise which became a motivating factor for lodging the complaint. He further submits that the entire statements under Sections 200 and 202 are tailor-made just in order to suit the circumstances in favour of the prosecution. He also submits that the court below had summoned the applicants in a routine manner without according satisfaction of prima facie application of the penal sections.

7. Learned State Law Officer, on the other hand, submits that whatever might since there are no material contradictions or variations in statements under sections 200 and 202 vis-a-vis the allegations in the complaint, thus, the case becomes triable and further whatever arguments are being sought to be raised with regard to the good books offered by the applicants faction for getting the settlement done they are at best defences consideration whereof would be required only when the trial commences.

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

9. Apparently, at the instance of the applicants challenge has been raised to the summoning order. There are certain criteria who have to be adhered to in order to determine as to whether the summoning order suffers from legal infirmity or not. Amongst others, one of the criteria would be inevitably the nature of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 of the Cr.P.C. In case, there are material contradictions or variations which go to the root of the matter then the courts would not be reluctant in interfering.

10. Applying the said principles of law in the facts of the case, it emerges that on 29.01.2024, the opposite party no. 2 who happens to be the grand mother of victim had lodged a complaint pin pointing the involvement of the applicants for attributing criminality particularly when the allegation is that the victim was all alone in the house and the applicants herein barged into the house and, thereafter, tore the clothes of the victim, disrobed her and she was made naked. Thereafter, when on the hue and cry being raised, the opposite party no. 2 and others came to the spot then the applicants hurled abuses and ran away and when attempt was being made to get the FIR lodged while approaching the police station then the applicants herein gathered as a gang and hurled abuses and with the aid of fists and legs inflicted injuries. The statement of the complainant under Section 200 and of the other witnesses including testimony of the victim itself pin points allegations against the applicants. Once being so the case becomes triable in the background of the fact that there are no material contradictions or variations so as to thoroughly overrule the possibility of the occurrence of the event. So far as the argument raised by the learned counsel for the applicants that the victim was not subjected to medical examination, thus, the prosecution theory would fail is not convincible at the stage when the summoning is subject matter of challenge as its impact and effects are to be seen when the trial commences when decision is to be taken whether it is a case of conviction or acquittal. As regards the submission of the learned counsel for the applicants that there happen to be a motivating factor which became the basis for lodging of the false complaint i.e. with relation to offering of the good offices pursuant whereto settlement was accorded. This Court, at this stage, is not required to delve into as at best it is a defence consideration whereof would be necessitated if raised at the stage when the trial commences. Moreover, there is another aspect of the matter which would be relevant to be noticed i.e. Section 29 of the POCSO Act according to which there is a presumption as to certain offences. Section 29 deals with presumption as to certain offences according to which where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the special court shall presume that such person has committed or abetted or attempted to commit the offence as the case may be 'unless the contrary is proved'. The word employed by the legislature 'unless the contrary is proved' pre-supposes trial and, thus, the case becomes trial.

11. Cumulatively analysing the case from the four corners of law, this Court does not find the present case to be a fit case for exercise of inherent jurisdiction u/s 528 BNSS particularly, a note of caution has been flagged by the Hon’ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 that the court should not in a routine manner interfere and scuttle the proceedings. Since there is nothing exceptional in the case so as to warrant interference, thus, interference is declined, the application stands disposed of leaving it open for the applicant to contest the trial and to take all legal and factual grounds which the Court has no reasons to disbelieve that the same shall be considered in accordance with law.

12. The passing of the order today may not be construed to be an expression that this Court has adjudicated on the merits of the allegations and whatever observations are, they are subject to the challenge raised to the summoning order and the trial court shall proceed to decide the trial in accordance with law. Order Date :- 1.8.2025 Rajesh