High Court
Case Details
Neutral Citation No. - 2025:AHC:81722 Court No. - 52 Case :- APPLICATION U/S 528 BNSS No. - 15117 of 2025 Applicant :- Mohit Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J. Compliance affidavit, filed by learned AGA for the State today in the Court, is taken on record. Accordingly, the notice upon the opposite party no.2 is sufficient. As per the office report dated 16.05.2025, notice upon the opposite party no.2 is sufficient.
Legal Reasoning
Heard Mr. Manoj Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State as well as perused the entire material available on record. The present application has been filed to quash the charge-sheet dated 17.10.2024 and cognizance/summoning order dated 25.10.2024 as well as the entire proceedings of Criminal Case No.1033 of 2024 (State Vs. Mohit and Others), arising out of Case Crime No.164 of 2024, under Sections 137(2), 74, 61(2) BNS and 16/17 of POCSO Act and Section 3(2)(va) of SC/ST Act, Police Station-Bahadurgarh, District-Hapur, pending in the Court of Additional District Judge/Special Judge, POCSO Act, Hapur. Brief facts of the case are that an FIR was lodged on 23.08.2024 at about 17:27 hrs by the opposite party no.2 against two named accused including the applicant, under Sections 137(2), 74, 61(2) BNS and Section 3(2)(va) of SC/ST Act and Section 7/8 of POCSO Act, wherein it has been alleged that the informant's 14-15 year old daughter Kanika, student of Class-X, was going to her school on 23.08.2024 at about 07:30 a.m. On the instigation of applicant, the co-accused; Shadab, who is friend of applicant, took her on auto rickshaw and molested her. Subsequently, leaving her on Dehra Mod, the co-accused Shadab ran away. It is also alleged that the opposite party no.2 belongs to Jatav caste. After investigation, charge sheet has been submitted pursuant to which the applicant has been summoned. Learned counsel for the applicant submits that the impugned summoning order has been passed without application of judicial mind. In the statement of victim U/s 180 BNSS, there is no allegation against the applicant. However, in her statement U/s 183 BNSS, the victim has exaggerated her version making allegation against the applicant also. The informant, who is father of the victim has also not stated anything against the applicant in his statement U/s 180 BNSS as well as Majeed statement. He further submits that there is no injury caused to the victim as is evident from the medical report. Considering the statements of the victim as well as the informant, it is clear that at the utmost, if the applicant has instigated the co-accused; Shadab, who took her on auto rickshaw, offence under Section 60 BNSS (Section 120 IPC) would be made out, however, the applicant has not been chargesheeted for the aforesaid offence. Seeing the variations, it can be said that the applicant has been falsely implicated due to village party bandi as the opposite party no.2 resides in the same village as the applicant. He pointed out certain documents and statements in support of his contention. He, therefore, submits that the charge-sheet, summoning order as well as entire proceedings be quashed by this Court as the same is an abuse process of Court. Learned counsel for opposite party no.2 and the learned A.G.A. for the State have opposed the submissions made by the learned counsel for the applicant by submitting that from the statement of the victim U/s 183 BNSS as well as statement of the informant, the applicant accompanied co-accused; Shadab cannot be denied. They further submit that in her statement U/s 183 BNSS, the victim, who is minor, clearly specified the allegation against the applicant also. As regards the injury, nothing is required for the offence U/s 74 of BNS. However, the medical report goes to show that there are marks of tying a scarf on her neck, which was the result of molestation done by the co-accused; Shadab. Being a part of such plan, the applicant is also liable to the same punishment as the co- accused. Even otherwise, the applicant's anticipatory bail has also been rejected. As regards contention raised by learned counsel for the applicant that the summoning order has been passed in a mechanical manner, they submit that the entire case dairy has been perused including the statements of the victim and informant as well as the chargesheet, which proves the allegations levelled against the applicant. Learned AGA and learned counsel for the opposite party no.2 further submit that in her statement U/s 183 BNSS, the victim has specifically stated that the applicant alongwith co-accused; Shadab molested her. Shadab touched her chest and forcibly touched her private part. When she screamed, both of them tried to cover her mouth with a scarf and pushed her. The medical supports the statement of the victim as there are marks of scarf on her neck, therefore, the entire story is proved. They further submit that there is nothing on record to show as to why the opposite party no.2 will falsely implicate the applicant. As regards Section 3(2)(va) of SC/ST Act, the applicant belongs to the same village as that of opposite party no.2, therefore, he knew about Jatav caste to which the opposite party no.2 belongs. He further submits that all the contentions raised by the applicants' counsel relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned AGA has placed reliance upon the judgments of the Apex Court in the case of Dilbag Rai Vs. State of Haryana & Others reported in AIR 2019 (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in MANU/SC/1432/2019. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application. This Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 528 BNSS to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicant and trial is to yet to come only on the submission made by the learned counsel for the applicant that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:- (i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866, (ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335, (iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222, (iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, (v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682, (vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454, (vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, and lastly (viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. The prayer for quashing the impugned charge-sheet dated 17.10.2024 and summoning order dated 25.10.2024 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage. The present application has no merit and is, accordingly, rejected. However, it is provided that if the applicant moves an application for discharge before the court concerned along with a certified copy of this order, the same shall be considered and decided in accordance with law by means of a reasoned and speaking order as expeditiously as possible. Needless to say that the observation made in this order shall not affect the trial of the case. It is made clear that no interim order has been passed in favour of the applicant. Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad Order Date :- 16.5.2025 Jitendra/-