High Court · 2025

Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh ) and quash to the order dated 30.01.2025 and entire proceeding in Case Crime No247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh). It is further prayed to the Hon'ble court stay the further proceeding In discharge Case Crime No247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh ) during the pendency of the present application before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the present case, otherwise the applicant shall suffer irreparable loss and injury."

4. It transpires from record that during pendency of trial applicant filed a discharge application dated 25.09.2024 in terms of Section 227 Cr.P.C/250 BNSS before court below seeking his discharge in Sessions Trial/P.S.T No. 129 of 2024 (State Vs. Komal Singh) arising out of Case Crime No. 247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad

5. Learned counsel for applicant submits that order impugned dated 30.01.2025 passed by court below rejecting the discharge application filed by applicant is manifestly illegal and arbitrary. Consequently, the same is liable to be quashed by this Court. Court below has failed to exercise it's jurisdiction diligently. The order impugned is the outcome of the outcome of exercise of jurisdiction in a casual and caviler fashion. Court below has rejected the discharge application filed by accused/applicant without adverting to the papers accompanying the charge sheet/police report submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. Court below has simply referred to the contents of the F.I.R., the events that have taken place thereafter and has then referred to the judgements of the Supreme Court but no attempt has been made by court below to examine the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. and thereafter record a finding as to whether as per the material on record the commission of an offence by accused/applicant is disclosed, whether there is any evidence against accused/applicant and whether the prosecution of accused/applicant can be sustained on account of grave suspicion. He therefore submits that in view of above, the order impugned passed by court below is in derogation of the observation made by the Apex Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720 wherein the Court has observed that Court while dealing with the discharge application has to look into the papers accompanying the police report and then record it's conclusion in the light of said material. As such, the same is liable to be quashed by this Court.

6. Per contra, the learned A.G.A. representing State-opposite party- 1 and Mr. Yogendra Misra, the learned counsel representing first informant/opposite party-2 have vehemently opposed this application. However, they could not dislodge the factual and legal submissions urged by the learned Counsel for applicant in support of this application with reference to the record at this stage.

7. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Yogendra Misra, the learned counsel representing first informant/opposite party-2 and upon perusal of record this Court finds that in respect of an occurrence which is alleged to have occurred on 06.03.2023, a delayed F.IR. dated 11.06.2023 was lodged by first informant/opposite party-2, Sangeeta and was registered as Case Crime No. 247 of 2023 Under Sections, 376, 506 I.P.C. and U/S 3/4 POCSO Act, Police Station Narkhi, District Firozabad. In the aforesaid F.I.R., three persons namely Komal, Sheelendra and Raghuveer have been nominated as named accused. 8 After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. On the basis material collected by the Investigating Officer during course of investigation, he came to the conclusion that no offence as complained off is established nor the complicity of applicant in the alleged crime is apparent. He therefore opined to submit a final report. Accordingly the Investigating Officer submitted the final report/police report dated 30.07.2023 in terms of Section 173 (2) Cr.P.C.

9. After submission of aforementioned final report/police report, the first informant/opposite party-2 filed a protest petition against the same.

10. It is apposite to mentioned her that under the Code i.e. Cr.P.C., there is no provision, which enables the first informant/opposite party-2 to file a protest petition against the police report. However, the said right is now available to the first informant by virtue of the judgement of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537. Court below thereafter considered the protest petition in the light of the papers accompanying the police report. Thereafter vide order dated

12.01.2024, court below rejected the aforementioned final report/police report dated 30.07.2023, allowed the protest petition filed by first informant/opposite party-2 and simultaneously summoned the applicant under Sections 376 and 506 I.P.C. and Section 3/4 POCSO Act with the direction that consequential case shall proceed as a State case.

11. Subsequently, applicant filed a discharge application in terms of Section 227 Cr.P.C. / 250 BNSS, which has been rejected by court below by means of order dated 30.01.2025. Once the final report/police report submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. was rejected by court below then there was no material before court below on the basis of which it could have taken cognizance in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. Therefore, the cognizance taking order/summoning order dated 12.01.2024 is not only illegal but also in excess of jurisdiction. Therefore, the consequential proceedings on the basis of said illegal order cannot be sustained. Furthermore, the court below while negating the prayer for discharge filed by applicant has not adverted the papers accompanying the police report and returned a finding in the light of above as noted herein above. As such, court below has miserably failed to comply with the observations made by Apex Court in Sanjay Kumar Rai (Supra)

12. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A. Mr. Yogendra Misra, Advocate has put in appearance on behalf of first informant/opposite party-2. They pray for and are granted four weeks time to file their respective counter affidavits. Applicant will have two weeks thereafter to file his rejoinder affidavits.

13. List this application for admission on 08.07.2025.

14. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above, as an interim measure, it is hereby provided that until further orders of this Court further proceedings in Sessions Trial/P.S.T No. 129 of 2024 (State Vs. Komal Singh) arising out of Case Crime No. 247 of 2023 Under Sections 376, 506 I.P.C. and U/S 3/4 POCSO Act, Police Station-Narkhi, District-Firozabad. shall remain stayed. Order Date :- 8.5.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad

Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh ) and quash to the order dated 30.01.2025 and entire proceeding in Case Crime No247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh). It is further prayed to the Hon'ble court stay the further proceeding In discharge Case Crime No247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad. P.S.T no.129/ Pending in the court of Additional District and Session Judge / special judge POCSO court no.1 Firozabad. 2024 (State Versus Komal Singh ) during the pendency of the present application before this Hon'ble Court, and/or pass such other and further order which this Hon'ble Court may deem fit and proper under the circumstances of the present case, otherwise the applicant shall suffer irreparable loss and injury."

4. It transpires from record that during pendency of trial applicant filed a discharge application dated 25.09.2024 in terms of Section 227 Cr.P.C/250 BNSS before court below seeking his discharge in Sessions Trial/P.S.T No. 129 of 2024 (State Vs. Komal Singh) arising out of Case Crime No. 247 of 2023 Under Section, 376,506. and U/S 3/4 POCSO Act Police Station Narkhi District Firozabad

5. Learned counsel for applicant submits that order impugned dated 30.01.2025 passed by court below rejecting the discharge application filed by applicant is manifestly illegal and arbitrary. Consequently, the same is liable to be quashed by this Court. Court below has failed to exercise it's jurisdiction diligently. The order impugned is the outcome of the outcome of exercise of jurisdiction in a casual and caviler fashion. Court below has rejected the discharge application filed by accused/applicant without adverting to the papers accompanying the charge sheet/police report submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. Court below has simply referred to the contents of the F.I.R., the events that have taken place thereafter and has then referred to the judgements of the Supreme Court but no attempt has been made by court below to examine the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. and thereafter record a finding as to whether as per the material on record the commission of an offence by accused/applicant is disclosed, whether there is any evidence against accused/applicant and whether the prosecution of accused/applicant can be sustained on account of grave suspicion. He therefore submits that in view of above, the order impugned passed by court below is in derogation of the observation made by the Apex Court in Sanjay Kumar Rai Vs. State of Uttar Pradesh and Another (2022) 15 SCC 720 wherein the Court has observed that Court while dealing with the discharge application has to look into the papers accompanying the police report and then record it's conclusion in the light of said material. As such, the same is liable to be quashed by this Court.

6. Per contra, the learned A.G.A. representing State-opposite party- 1 and Mr. Yogendra Misra, the learned counsel representing first informant/opposite party-2 have vehemently opposed this application. However, they could not dislodge the factual and legal submissions urged by the learned Counsel for applicant in support of this application with reference to the record at this stage.

7. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Yogendra Misra, the learned counsel representing first informant/opposite party-2 and upon perusal of record this Court finds that in respect of an occurrence which is alleged to have occurred on 06.03.2023, a delayed F.IR. dated 11.06.2023 was lodged by first informant/opposite party-2, Sangeeta and was registered as Case Crime No. 247 of 2023 Under Sections, 376, 506 I.P.C. and U/S 3/4 POCSO Act, Police Station Narkhi, District Firozabad. In the aforesaid F.I.R., three persons namely Komal, Sheelendra and Raghuveer have been nominated as named accused. 8 After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. On the basis material collected by the Investigating Officer during course of investigation, he came to the conclusion that no offence as complained off is established nor the complicity of applicant in the alleged crime is apparent. He therefore opined to submit a final report. Accordingly the Investigating Officer submitted the final report/police report dated 30.07.2023 in terms of Section 173 (2) Cr.P.C.

9. After submission of aforementioned final report/police report, the first informant/opposite party-2 filed a protest petition against the same.

10. It is apposite to mentioned her that under the Code i.e. Cr.P.C., there is no provision, which enables the first informant/opposite party-2 to file a protest petition against the police report. However, the said right is now available to the first informant by virtue of the judgement of the Supreme Court in Bhagwant Singh Vs. Commissioner of Police And Another, (1985) 2 SCC 537. Court below thereafter considered the protest petition in the light of the papers accompanying the police report. Thereafter vide order dated

12.01.2024, court below rejected the aforementioned final report/police report dated 30.07.2023, allowed the protest petition filed by first informant/opposite party-2 and simultaneously summoned the applicant under Sections 376 and 506 I.P.C. and Section 3/4 POCSO Act with the direction that consequential case shall proceed as a State case.

11. Subsequently, applicant filed a discharge application in terms of Section 227 Cr.P.C. / 250 BNSS, which has been rejected by court below by means of order dated 30.01.2025. Once the final report/police report submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. was rejected by court below then there was no material before court below on the basis of which it could have taken cognizance in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. Therefore, the cognizance taking order/summoning order dated 12.01.2024 is not only illegal but also in excess of jurisdiction. Therefore, the consequential proceedings on the basis of said illegal order cannot be sustained. Furthermore, the court below while negating the prayer for discharge filed by applicant has not adverted the papers accompanying the police report and returned a finding in the light of above as noted herein above. As such, court below has miserably failed to comply with the observations made by Apex Court in Sanjay Kumar Rai (Supra)

12. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A. Mr. Yogendra Misra, Advocate has put in appearance on behalf of first informant/opposite party-2. They pray for and are granted four weeks time to file their respective counter affidavits. Applicant will have two weeks thereafter to file his rejoinder affidavits.

13. List this application for admission on 08.07.2025.

14. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above, as an interim measure, it is hereby provided that until further orders of this Court further proceedings in Sessions Trial/P.S.T No. 129 of 2024 (State Vs. Komal Singh) arising out of Case Crime No. 247 of 2023 Under Sections 376, 506 I.P.C. and U/S 3/4 POCSO Act, Police Station-Narkhi, District-Firozabad. shall remain stayed. Order Date :- 8.5.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad