Shahiba Khatoon v. Kamrujjama and others), U/s

brief of Sri Vikas Chauhan, learned counsel for the applicants, Sri S.P. Singh, learned State Law Officer for the State and Sri R.P. Srivastava, for the O.P. No.2.

2. A joint statement has been made by learned counsel for the applicants, learned A.G.A. as well as learned counsel for the O.P. No.2 that they do not want to file any further affidavit and the application be decided at the fresh stage.

3. This is an application under Section 528 of BNSS preferred by the applicants for quashing the order dated 06.06.2024 passed by Additional Sessions Judge/Special Judge, Exclusive Court (POCSO Act), Basti, by which the learned court concerned summoned the applicant no.1 for offence U/s 376(3), 506, 342 IPC and 5/6 POCSO Act and applicant no.2 for offence U/s 342, 506 IPC and 16/17 POCSO Act as well as further proceeding of Complaint/(Warrant/Summon) Case No.77 of 2024 (Shahiba Khatoon Vs. Kamrujjama and others), U/s 376(3), 342, 506 IPC and 5/6 & 16/17 POCSO Act, Police Station Walterganj, District Basti, pending before the Additional Sessions Judge/Special Judge, Exclusive Court (POCSO Act), Basti.

4. The case of the applicant is that proceeding under Section 156(3) of CrPC came to be lodged by the O.P. No.2 on 01.03.2024 against the applicants, who are two in number along with two others with an allegation that O.P. No.2 was aged about 16 years and the applicants and their family members 2 NA528 No. 9928 of 2025 are hardened criminals, who misguide and allure the girls of tender age and outrage their modesty. Allegation is that about three years before from the lodging of the proceedings under Section 156(3) of CrPC, when the O.P. No.2 was 13 years of age,on 15.04.2021 at 07:00, the applicant no.2 who happens to the mother of applicant no.1, came to the house of O.P. No.2 and uttered that she was not feeling well, so the O.P. no.2 may come to her house and cook the food and the O.P. no.2 thereafter proceeded to the house of applicant no.2, and as soon as she entered the house, applicant no.1 caught hold of O.P. No.2, lifted her, closed the door, tied the hands and fixed a cloth on the mouth of O.P. No.2 and outraged the modesty and against her wishes outrage the modesty, pursuant whereto blood oozed out, she became unconscious and a video of the said incident was made. On gaining consciousness, the O.P. no.2 protested the same before the mother of applicant no.1 and then the applicant no.2 advised the O.P. No.2 to forget all the things, otherwise it would tarnish her image and thereafter, the O.P. no.2 came back to her house, narrated the said incident to her parents, but on account of honour nothing was disclosed. However, the applicant herein started blackmailing the O.P. No.2 while showing the pictures which had been captured in a mobile and thereafter used to outrage the modesty and on 09-10.02.2024 at 12:00, the applicant no.2 came in the house of O.P. No.2 and witnessing his entry, the mother of O.P. No.2 made hue and cry. The applicant no.2 thereafter ran away threatening that the O.P. No.2 and her family will have to face the music. A complaint was made through registry to the police, but when nothing happened, she proceeded through proceeding under Section 156(3) CrPC. The court below transformed the case and treated it to be a complaint case and post-recording of the statement under Section 200 CrPC of the O.P. No.2/ victim, Jainab, Atul and Mohd. Amir under Section 202 CrPC, the court of Addl. Sessions Judge/Special Judge, Exclusive Court (POCSO Court), proceeded to summon the applicant no.1 under Sections 376(3), 506, 342 IPC read with Section 5/6 of POCSO Act and the applicant no.2 under Sections 342, 506 IPC read with Section 16/17 of POCSO Act.

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

6. Learned counsel for the applicants submits that the summoning order 3 NA528 No. 9928 of 2025 cannot be sustained for a single moment, particularly when the entire allegation contained in the complaint are nothing but a bundle of lies just in order to falsely implicate and rope in the applicant. Submission is that no such incident took place, and in case, any incident took place, then obviously the victim ought to have been subjected to medical examination and if there is no medical examination on record, thus adverse inference can be drawn. Further submission is that even otherwise, post lodging of the proceedings under Section 156(3) CrPC, the Magistrate sought report from the police and according to report of the Police, the marriage of the O.P. no.2 stood solemnized with applicant no.1 on 24.02.2023 and he had gone outstation to work and there happens to be a matrimonial dispute, which has been given a criminal colour and further there happens to be also a settlement /compromise entered into between the parties. Learned counsel for the applicants has invited attention of the court below towards the marriage certificate issued by the Madarsa Arabia Noorul Ulum Basti, U.P. and a compromise at page-32 of the paper-book dated 22.02.2024. Learned counsel for the applicant submits that the applicants are innocent. They have not committed the offence and the entire allegations so sought to be leveled have no legs to stand. It is also contended that on the basis of the tailormade statements of the witnesses under Sections 200 and 202 of CrPC, the applicants have been summoned without there being any prima facie satisfaction with regard to the application/attraction of the penal sections.

7. Learned A.G.A. as well as the counsel appearing for O.P. No.2 submit that from the perusal of the statements under Sections 200 and 202 CrPC vis-à-vis the allegations made in the complaint do not show any material contradiction or variation, thus the case becomes triable and according to the learned counsel for the O.P. no.2, no such compromise took place and the applicant no.1 and the O.P. No.2 are not married.

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

9. Apparently, the applicants herein have challenged a summoning order whereby the applicants have been summoned under penal sections. At the stage of summoning the court of not required to delve into the merits of the allegations and adjudge the same, but what is required is that fact that prima 4 NA528 No. 9928 of 2025 facie offences are made out from the nature or from the allegations made in the complaint, vis-à-vis the statements under Sections 200 and 202 of CrPC. In case, there are no material contradiction/variations, then the case becomes triable in nature. Applying the said principles in the present facts of the case, the complaint alleges that the O.P. No.2 was subjected to outraging of modesty by the applicant no.1 on various occasions and the said incident was captured in a mobile phone by way of clicking the camera. The O.P. No.2/ victim has supported the prosecution theory and further the statements under Sections 200 and 202 CrPC are on the same line and there are no material contradictions. Once the position being so the case becomes triable. As regards the submission of the learned counsel for the applicants that the victim was not subjected to medical examination, thus adverse inference is to be drawn and the prosecution theory is to fail is not convincible, particularly when the effect and impact of non-subjection of the victim to medical examination has to be tested on its own velocity and density at the time when the trial commences. With respect to the argument of learned counsel for the applicants that there happens to be a police report showing the fact that the applicant no.1 and O.P. No.2 are married and there happens to be a settlement between them is at best a matter of defence and at the stage of summoning, this Court is not required to delve into the same, particularly when there is a serious dispute raised by the complainant that she has never married to applicant no.1 herein.

10. Nonetheless, Section 29 of the Protection of Children from Sexual Offences Act, 2012 came into play which provides for presumption as to certain offences stipulating therein that when 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.

11. The words employed ‘contrary is proved’ marks significance, particularly when it presupposes a situation wherein trial is to be conducted. Even otherwise, this Court at the stage of summoning when prima facie offences are made out, is not required to scuttle the proceeding, as held by the Hon’ble Apex Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra 2021 SCC Online SC 315. 5 NA528 No. 9928 of 2025

12. Cumulatively analyzing the case from the four-corners of law, the present case does not fall within an exceptional category, so as to warrant interference. Accordingly, interference is declined. The application is disposed of while granting liberty to the applicants to contest the trial while taking all the legal and factual grounds before the court below and this Court has no reason to disbelieve that the court below shall consider and decide the matter in correct perspective. September 9, 2025 N.S.Rathour (Vikas Budhwar,J.) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad

brief of Sri Vikas Chauhan, learned counsel for the applicants, Sri S.P. Singh, learned State Law Officer for the State and Sri R.P. Srivastava, for the O.P. No.2.

2. A joint statement has been made by learned counsel for the applicants, learned A.G.A. as well as learned counsel for the O.P. No.2 that they do not want to file any further affidavit and the application be decided at the fresh stage.

3. This is an application under Section 528 of BNSS preferred by the applicants for quashing the order dated 06.06.2024 passed by Additional Sessions Judge/Special Judge, Exclusive Court (POCSO Act), Basti, by which the learned court concerned summoned the applicant no.1 for offence U/s 376(3), 506, 342 IPC and 5/6 POCSO Act and applicant no.2 for offence U/s 342, 506 IPC and 16/17 POCSO Act as well as further proceeding of Complaint/(Warrant/Summon) Case No.77 of 2024 (Shahiba Khatoon Vs. Kamrujjama and others), U/s 376(3), 342, 506 IPC and 5/6 & 16/17 POCSO Act, Police Station Walterganj, District Basti, pending before the Additional Sessions Judge/Special Judge, Exclusive Court (POCSO Act), Basti.

4. The case of the applicant is that proceeding under Section 156(3) of CrPC came to be lodged by the O.P. No.2 on 01.03.2024 against the applicants, who are two in number along with two others with an allegation that O.P. No.2 was aged about 16 years and the applicants and their family members 2 NA528 No. 9928 of 2025 are hardened criminals, who misguide and allure the girls of tender age and outrage their modesty. Allegation is that about three years before from the lodging of the proceedings under Section 156(3) of CrPC, when the O.P. No.2 was 13 years of age,on 15.04.2021 at 07:00, the applicant no.2 who happens to the mother of applicant no.1, came to the house of O.P. No.2 and uttered that she was not feeling well, so the O.P. no.2 may come to her house and cook the food and the O.P. no.2 thereafter proceeded to the house of applicant no.2, and as soon as she entered the house, applicant no.1 caught hold of O.P. No.2, lifted her, closed the door, tied the hands and fixed a cloth on the mouth of O.P. No.2 and outraged the modesty and against her wishes outrage the modesty, pursuant whereto blood oozed out, she became unconscious and a video of the said incident was made. On gaining consciousness, the O.P. no.2 protested the same before the mother of applicant no.1 and then the applicant no.2 advised the O.P. No.2 to forget all the things, otherwise it would tarnish her image and thereafter, the O.P. no.2 came back to her house, narrated the said incident to her parents, but on account of honour nothing was disclosed. However, the applicant herein started blackmailing the O.P. No.2 while showing the pictures which had been captured in a mobile and thereafter used to outrage the modesty and on 09-10.02.2024 at 12:00, the applicant no.2 came in the house of O.P. No.2 and witnessing his entry, the mother of O.P. No.2 made hue and cry. The applicant no.2 thereafter ran away threatening that the O.P. No.2 and her family will have to face the music. A complaint was made through registry to the police, but when nothing happened, she proceeded through proceeding under Section 156(3) CrPC. The court below transformed the case and treated it to be a complaint case and post-recording of the statement under Section 200 CrPC of the O.P. No.2/ victim, Jainab, Atul and Mohd. Amir under Section 202 CrPC, the court of Addl. Sessions Judge/Special Judge, Exclusive Court (POCSO Court), proceeded to summon the applicant no.1 under Sections 376(3), 506, 342 IPC read with Section 5/6 of POCSO Act and the applicant no.2 under Sections 342, 506 IPC read with Section 16/17 of POCSO Act.

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

6. Learned counsel for the applicants submits that the summoning order 3 NA528 No. 9928 of 2025 cannot be sustained for a single moment, particularly when the entire allegation contained in the complaint are nothing but a bundle of lies just in order to falsely implicate and rope in the applicant. Submission is that no such incident took place, and in case, any incident took place, then obviously the victim ought to have been subjected to medical examination and if there is no medical examination on record, thus adverse inference can be drawn. Further submission is that even otherwise, post lodging of the proceedings under Section 156(3) CrPC, the Magistrate sought report from the police and according to report of the Police, the marriage of the O.P. no.2 stood solemnized with applicant no.1 on 24.02.2023 and he had gone outstation to work and there happens to be a matrimonial dispute, which has been given a criminal colour and further there happens to be also a settlement /compromise entered into between the parties. Learned counsel for the applicants has invited attention of the court below towards the marriage certificate issued by the Madarsa Arabia Noorul Ulum Basti, U.P. and a compromise at page-32 of the paper-book dated 22.02.2024. Learned counsel for the applicant submits that the applicants are innocent. They have not committed the offence and the entire allegations so sought to be leveled have no legs to stand. It is also contended that on the basis of the tailormade statements of the witnesses under Sections 200 and 202 of CrPC, the applicants have been summoned without there being any prima facie satisfaction with regard to the application/attraction of the penal sections.

7. Learned A.G.A. as well as the counsel appearing for O.P. No.2 submit that from the perusal of the statements under Sections 200 and 202 CrPC vis-à-vis the allegations made in the complaint do not show any material contradiction or variation, thus the case becomes triable and according to the learned counsel for the O.P. no.2, no such compromise took place and the applicant no.1 and the O.P. No.2 are not married.

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

9. Apparently, the applicants herein have challenged a summoning order whereby the applicants have been summoned under penal sections. At the stage of summoning the court of not required to delve into the merits of the allegations and adjudge the same, but what is required is that fact that prima 4 NA528 No. 9928 of 2025 facie offences are made out from the nature or from the allegations made in the complaint, vis-à-vis the statements under Sections 200 and 202 of CrPC. In case, there are no material contradiction/variations, then the case becomes triable in nature. Applying the said principles in the present facts of the case, the complaint alleges that the O.P. No.2 was subjected to outraging of modesty by the applicant no.1 on various occasions and the said incident was captured in a mobile phone by way of clicking the camera. The O.P. No.2/ victim has supported the prosecution theory and further the statements under Sections 200 and 202 CrPC are on the same line and there are no material contradictions. Once the position being so the case becomes triable. As regards the submission of the learned counsel for the applicants that the victim was not subjected to medical examination, thus adverse inference is to be drawn and the prosecution theory is to fail is not convincible, particularly when the effect and impact of non-subjection of the victim to medical examination has to be tested on its own velocity and density at the time when the trial commences. With respect to the argument of learned counsel for the applicants that there happens to be a police report showing the fact that the applicant no.1 and O.P. No.2 are married and there happens to be a settlement between them is at best a matter of defence and at the stage of summoning, this Court is not required to delve into the same, particularly when there is a serious dispute raised by the complainant that she has never married to applicant no.1 herein.

10. Nonetheless, Section 29 of the Protection of Children from Sexual Offences Act, 2012 came into play which provides for presumption as to certain offences stipulating therein that when 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.

11. The words employed ‘contrary is proved’ marks significance, particularly when it presupposes a situation wherein trial is to be conducted. Even otherwise, this Court at the stage of summoning when prima facie offences are made out, is not required to scuttle the proceeding, as held by the Hon’ble Apex Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra 2021 SCC Online SC 315. 5 NA528 No. 9928 of 2025

12. Cumulatively analyzing the case from the four-corners of law, the present case does not fall within an exceptional category, so as to warrant interference. Accordingly, interference is declined. The application is disposed of while granting liberty to the applicants to contest the trial while taking all the legal and factual grounds before the court below and this Court has no reason to disbelieve that the court below shall consider and decide the matter in correct perspective. September 9, 2025 N.S.Rathour (Vikas Budhwar,J.) NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad