Shivam Upadhyay v. State of U.P.). Aforementioned application was disposed of finally vide order dat

"1. Heard Mr. Sudhanshu Kumar Singh, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mrs. Gunjan Sharma, the learned counsel representing first informant-opposite partyi-2 on behalf of the High Court Legal Services Committee.

2. Perused the record.

3. At the very outset, the learned A.G.A. submits that notice of this application has been served upon first informant-opposite party-2 on

08.10.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite par;ty-2 nor any one has put in appearance on his behalf to oppose this application even in revised call.

3. Applicant-Siddharth @ Shivam Upadhyay, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the entire criminal proceedings of Case, State Vs. Om Prakash Verma and others, arising out of Case crime no.161 of 2023, under sections 376 I.P.C., section 4 of POCSO Act, and section 3(2) (V) of S.C./S.T. (P.A.) Act, Police Station Badausa, District Banda as well as charge sheet dated 08.02.2024 and cognizance/ summoning order dated 18.03.2024 passed by Additional Sessions Judge/Special Court (POCSO Act), Banda pending in the court of Special Judge, POCSO Court, Banda, otherwise the applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further criminal proceedings of Case, State Vs. Om Prakash Verma and others, arising out of Case crime no.161 of 2023, under sections 376 I.P.C., section 34 of POCSO Act, and section 3(2)(V) of S.C./S.T. (P.A.) Act, Police Station Badausa, District Banda pending in the court of Special Judge, POCSO Court, Banda, during the pendency of present Application before Hon'ble Court. And/or pass such other and further order as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

4. At the very outset, the learned A.G.A. submits that applicant has rushed to this Court by filing the present application under Section 482 Cr.P.C. without availing statutory remedy available under Section 227 Cr.P.C. Learned A.G.A. further submits that Court below can deal with the grounds raised in support of this application threadbare at the first instance as it has the advantage of original record. On the above premise, the learned A.G.A. submits that no interference is warranted by this Court in present application under Section 482 Cr.P.C.

5. When confronted with above, the learned counsel for applicant could not overcome the same.

6. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that no useful purpose shall be served in keeping this application pending, as the grounds raised by the learned counsel for applicant in support of this application can very well be examined by Court below meticulously at the time of deciding the discharge application as Court below has the advantage of having the original record.

7. Accordingly this application is disposed off finally with a direction to the applicant to approach Court below by filing a discharge application in terms of Section 227 Cr.P.C. seeking his discharge in above mentioned criminal case. In case, such a discharge application is filed by applicant within a period of two weeks from today along with a certified copy of this order, the Court below shall proceed to decide the same by a reasoned and speaking order within a period of two months thereafter, provided there is no other legal impediment.

8. It goes without saying that till the disposal of discharge application as directed above, Court below shall not proceed further with the matter. Order Date :- 7.1.2025 "

9. In compliance of above order dated 07.01.2025, applicant filed a discharge application before court below in terms of Section 227 Cr.P.C. However, copy of the discharge application filed by applicant before court below has not been brought on record. Court below upon evaluation of the grounds raised in the discharge application in the light of the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C., ultimately came to the conclusion that a prima facie case is made out against accused/applicant and therefore, the trial of accused/applicant can be sustained. Having returned the aforesaid findings, court below ultimately rejected the discharge application filed by accused/applicant vide order dated

04.03.2025.

10. Thus feeling aggrieved by the above order dated 04.03.2025, applicant has now approached this Court by means of present application under Section 528 BNSS.

11. Learned counsel for applicant tried to impress upon the court by submitting that since the prosecutrix is a willing and consenting party, therefore, no offence as alleged can be said to be made out against applicant. He therefore submits that in the totality of the facts and circumstances of the fact as is evident from the findings recorded by court below itself, the criminal prosecution of applicant cannot be sustained. Court below while passing the order impugned has completely ignored the aforesaid aspect of the matter, which has vitiated the order impugned. In view of above, he therefore submits that present application is liable to be allowed by this Court.

12. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed this application. Learned A.G.A. submits that order impugned in present application is perfectly just and legal. Court below has delved into the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. and on basis thereof, has returned a prima facie finding that the prosecutrix was minor on the date of occurrence. By reason of above, consent, if any, of the prosecutrix is wholly immaterial. However, the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. as well as in her subsequent statement under Section 161 Cr.P.C. (BYAN MAJID) has clearly and categorically stated that her modesty was dislodged by present applicant. This Court while dealing with the veracity of the criminal proceedings at pre-trial stage cannot examine the veracity of the said statements. The statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. have to be taken ipso-facto, however, this Court cannot conduct a mini-trial to find out the innocence of accused/applicant.. Reference in this regard was made to the following judgments of Supreme Court and this Court in (i). Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217 (paragraph 11), (ii). Criminal Appeal No. 1129 of 2023 (Okansh Kumar Singh Vs. State of U.P. and Another) decided on 03.08.2023 (paragraph 29) and (iii) Vijaya Singh and Another Vs. State of Uttarakhand, 2024 SCC OnLine SC 3510 (paragraph 31). On the basis of above, the learned A.G.A. thus submits that when the order impugned is examined in the light of the parameters laid down by the three Judges Bench Judgement of Apex Court in Tarun Jit Tejpal Vs. State of Goa and Another, (2020) 17 SCC 556, the prosecution of accused/applicant can be sustained in law and fact. As such, no interference is warranted by this Court in present application.

13. When confronted with above, the learned counsel for applicant could not overcome the same.

14. Having heard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record this Court finds that the objections raised by the learned A.G.A. in opposition to this application under Section 528 BNSS are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant with reference to record or any other judgement of the Supreme Court. In view of above, no good grounds now exists to entertain the present application.

15. As a result, the present application fails and is liable to be dismissed.

16. It is accordingly dismissed. Order Date :- 13.5.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad

"1. Heard Mr. Sudhanshu Kumar Singh, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mrs. Gunjan Sharma, the learned counsel representing first informant-opposite partyi-2 on behalf of the High Court Legal Services Committee.

2. Perused the record.

3. At the very outset, the learned A.G.A. submits that notice of this application has been served upon first informant-opposite party-2 on

08.10.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite par;ty-2 nor any one has put in appearance on his behalf to oppose this application even in revised call.

3. Applicant-Siddharth @ Shivam Upadhyay, who is a charge sheeted accused, has approached this Court by means of present application under Section 482 Cr.P.C. with the following prayer:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this application and quash the entire criminal proceedings of Case, State Vs. Om Prakash Verma and others, arising out of Case crime no.161 of 2023, under sections 376 I.P.C., section 4 of POCSO Act, and section 3(2) (V) of S.C./S.T. (P.A.) Act, Police Station Badausa, District Banda as well as charge sheet dated 08.02.2024 and cognizance/ summoning order dated 18.03.2024 passed by Additional Sessions Judge/Special Court (POCSO Act), Banda pending in the court of Special Judge, POCSO Court, Banda, otherwise the applicant will suffer irreparable loss and injury. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further criminal proceedings of Case, State Vs. Om Prakash Verma and others, arising out of Case crime no.161 of 2023, under sections 376 I.P.C., section 34 of POCSO Act, and section 3(2)(V) of S.C./S.T. (P.A.) Act, Police Station Badausa, District Banda pending in the court of Special Judge, POCSO Court, Banda, during the pendency of present Application before Hon'ble Court. And/or pass such other and further order as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."

4. At the very outset, the learned A.G.A. submits that applicant has rushed to this Court by filing the present application under Section 482 Cr.P.C. without availing statutory remedy available under Section 227 Cr.P.C. Learned A.G.A. further submits that Court below can deal with the grounds raised in support of this application threadbare at the first instance as it has the advantage of original record. On the above premise, the learned A.G.A. submits that no interference is warranted by this Court in present application under Section 482 Cr.P.C.

5. When confronted with above, the learned counsel for applicant could not overcome the same.

6. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that no useful purpose shall be served in keeping this application pending, as the grounds raised by the learned counsel for applicant in support of this application can very well be examined by Court below meticulously at the time of deciding the discharge application as Court below has the advantage of having the original record.

7. Accordingly this application is disposed off finally with a direction to the applicant to approach Court below by filing a discharge application in terms of Section 227 Cr.P.C. seeking his discharge in above mentioned criminal case. In case, such a discharge application is filed by applicant within a period of two weeks from today along with a certified copy of this order, the Court below shall proceed to decide the same by a reasoned and speaking order within a period of two months thereafter, provided there is no other legal impediment.

8. It goes without saying that till the disposal of discharge application as directed above, Court below shall not proceed further with the matter. Order Date :- 7.1.2025 "

9. In compliance of above order dated 07.01.2025, applicant filed a discharge application before court below in terms of Section 227 Cr.P.C. However, copy of the discharge application filed by applicant before court below has not been brought on record. Court below upon evaluation of the grounds raised in the discharge application in the light of the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C., ultimately came to the conclusion that a prima facie case is made out against accused/applicant and therefore, the trial of accused/applicant can be sustained. Having returned the aforesaid findings, court below ultimately rejected the discharge application filed by accused/applicant vide order dated

04.03.2025.

10. Thus feeling aggrieved by the above order dated 04.03.2025, applicant has now approached this Court by means of present application under Section 528 BNSS.

11. Learned counsel for applicant tried to impress upon the court by submitting that since the prosecutrix is a willing and consenting party, therefore, no offence as alleged can be said to be made out against applicant. He therefore submits that in the totality of the facts and circumstances of the fact as is evident from the findings recorded by court below itself, the criminal prosecution of applicant cannot be sustained. Court below while passing the order impugned has completely ignored the aforesaid aspect of the matter, which has vitiated the order impugned. In view of above, he therefore submits that present application is liable to be allowed by this Court.

12. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed this application. Learned A.G.A. submits that order impugned in present application is perfectly just and legal. Court below has delved into the papers accompanying the police report/charge sheet submitted by the Investigating Officer in terms of Section 173 (2) Cr.P.C. and on basis thereof, has returned a prima facie finding that the prosecutrix was minor on the date of occurrence. By reason of above, consent, if any, of the prosecutrix is wholly immaterial. However, the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. as well as in her subsequent statement under Section 161 Cr.P.C. (BYAN MAJID) has clearly and categorically stated that her modesty was dislodged by present applicant. This Court while dealing with the veracity of the criminal proceedings at pre-trial stage cannot examine the veracity of the said statements. The statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. have to be taken ipso-facto, however, this Court cannot conduct a mini-trial to find out the innocence of accused/applicant.. Reference in this regard was made to the following judgments of Supreme Court and this Court in (i). Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat (1983) 3 SCC 217 (paragraph 11), (ii). Criminal Appeal No. 1129 of 2023 (Okansh Kumar Singh Vs. State of U.P. and Another) decided on 03.08.2023 (paragraph 29) and (iii) Vijaya Singh and Another Vs. State of Uttarakhand, 2024 SCC OnLine SC 3510 (paragraph 31). On the basis of above, the learned A.G.A. thus submits that when the order impugned is examined in the light of the parameters laid down by the three Judges Bench Judgement of Apex Court in Tarun Jit Tejpal Vs. State of Goa and Another, (2020) 17 SCC 556, the prosecution of accused/applicant can be sustained in law and fact. As such, no interference is warranted by this Court in present application.

13. When confronted with above, the learned counsel for applicant could not overcome the same.

14. Having heard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record this Court finds that the objections raised by the learned A.G.A. in opposition to this application under Section 528 BNSS are not only borne out from the record but furthermore the same could not be dislodged by the learned counsel for applicant with reference to record or any other judgement of the Supreme Court. In view of above, no good grounds now exists to entertain the present application.

15. As a result, the present application fails and is liable to be dismissed.

16. It is accordingly dismissed. Order Date :- 13.5.2025 YK YASHWANT KUMAR High Court of Judicature at Allahabad