High Court
Case Details
Neutral Citation No. - 2025:AHC:90237 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 17788 of 2025 Applicant :- Arvind and 4 others Opposite Party :- State of U.P. and another Counsel for Applicant :- Satendra Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
13. In my opinion, it would not be appropriate for this Court in absence of evidences and records in totality to record a finding upon the age of the victim. The import and impact of the ossification report which is being relied upon by the applicants is to be tested on its own strength by the court below also dependent upon the fact that whether it was before the court at the time of summoning of the applicants. In the present proceedings, this Court is also not required to record any finding with respect to the effects of non-subjection of the victim to medical examination.
Arguments
1. Heard Sri Satendra Singh, learned counsel for the applicants as well as Sri Vikas Sharma, learned AGA for the State and Sri Bharat Bhushan Paul for the opposite party no. 2. Though the name of Sri Bharat Bhushan Paul is not printed on the opposite side but he has made statement that he has filed his Vakalatnama on 24.05.2025 and the Court inquired from the Bench Secretary and it is available as per the case status. 2. This application u/s 528 of BNSS has been preferred for by quashing the summoning order dated 18.01.2025 as well as entire proceedings registered its pursuance as Session Trail/Complainant No. 2181 of 2023, 'Asin v/s. Arvind and others', Under Sections 354, 323, 504, 506 I.P.C. and 7/8 POCSO Act, Police Station- Narkhi, District-Firozabad, presently pending before the Court of Learned Additional District and Session Judge /Additional Special Judge POCSO Court No. 1, Firozabad. in 3. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is being decided at the fresh stage. 4. The case of the applicant is that a first information report was lodged by the opposite party no. 2-complainant against the applicants who are five in number under Sections 354, 376, 511, 147, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act with an allegation that the complainant is the resident of District Firozabad and on 24.09.2019 at about 5:00 in the evening when the victim along with her brother who was aged about 10 years was returning after purchasing the medicines then near the field where chilli was planted, the applicant no. 1 attempted to commit bad act as he caught hold of the victim and dragged her to the agricultural field and tore her clothes and on hue and cry being raised by the victim and her brother, the applicant no. 1 ran away while threatening. It is also alleged that even in the past also on 27.06.2019 the applicant no. 1 had extended indecent behaviour and gesture and when the opposite party no. 2 went to the house of the applicants then all the applicants hurled abuses that too on caste based and threatened them. Some villagers who were nearby came to the rescue of the applicants and thereafter proceedings were also initiated by lodging of the written report but when the same was not lodged then the opposite party no. 2 was compelled to initiate proceedings under Section 156(3) of the Cr.P.C. pursuant whereto the FIR has been lodged. 5. Learned counsel for the applicants has submitted that post lodging of the first information report, the victim was taken for medical examination but she did not agree to the same and the medical examination could not be done and thereafter the age determination was done in the office of Chief Medical Officer, Firozabad wherein the age of the victim was found to be approximately 19 years. Investigation stood triggered and thereafter, a final report came to be filed by the Investigating Officer on 18.03.2020 exonerating the applicants on the premise that already the applicant no. 2 had lodged a first information report against the opposite party no. 2 faction being FIR No. 314 of 2019 under Sections 323, 307, 504 IPC read with Section 3(2)V of the SC/ST Act. 6. A protest petition came to be preferred by the opposite party no. 2 on 02.11.2022 in which an order was passed on 29.11.2022 for further investigation, thereafter, the further investigation was conducted and on 08.04.2023, final report was submitted. The same led to filing of the second protest petition on 09.08.2023 which transformed into a complaint case and post recording of statements under Section 200 Cr.P.C. of the opposite party no. 2, statement of the victim, her brother Sonu and Ali Khan under Section 202 of the Cr.P.C., the applicant no. 1 has been summoned under Sections 354, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act and the applicants no. 2 to 5 under Sections 323, 504, 506 IPC by the Court of Additional District and Sessions Judge/Special Judge, POCSO, Court No. 1, Firozabad in Session Case/Complaint Case No. 2181 of 2023. 7. Questioning the summoning order, the present application has been filed. 8. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for even a single moment particularly in view of the fact that first of all allegations have been levelled upon the applicant no. 1 with relation to commission of offences under Sections 354, 376, 511, 147, 323, 504, 506 read with Section 7/8 of the POCSO Act. however, the victim did not get herself subjected to medical examination on account whereof the truth could not be surfaced. Further submission is that even, in fact, on the medical examination of the victim, it was found that her age was 19 years, thus, there is no question of invocation of the penal provisions under the POCSO. It is also contended that twice the protest petition was preferred and investigation was conducted but there was nothing new which added flavour to the criminality particularly when the applicant has been summoned on the basis of those documents on which the applicants have been exonerated twice. It is also contended that the entire circumstances have been tailor-made and further there happens to be no material to show that the applicants have committed criminality. 9. Sri Pal who appears for the opposite party no. 2, on the other hand, submits that the once the FIR stood transformed into a complaint case and the allegation contained in the first information report are corroborated with the statements under Section 200 and 202 of the Cr.P.C. then this Court may not come to the rescue of the applicants particularly when it is a matter where an attempt was made to outrage the modesty of the minor girl. He also submits that question of non-subjection to medical examination would not be fatal insofar as summoning is concerned as its effects and ramifications would depend upon its own velocity when the trial commences when a decision is to be taken for conviction or acquittal. 10. Sri Vikas Sharma, learned State Law Officer has supported the argument of the learned counsel for the opposite party no. 2. 11. I have heard the submission so made across the bar and perused the record carefully. 12. Apparently, at the instance of the applicants, challenge has been raised to an order dated 18.01.2025 summoning the applicant no. 1 under Sections 354, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act and applicant no. 2 to 5 under Sections 323, 504, 506 IPC. The contention of the learned counsel for the applicants is that post lodging of the first information investigation triggered and on 18.01.2020, a final report came to be filed exonerating the applicants thereafter, a protest petition came to be preferred on 02.11.2022 by the opposite party no. 2 in which on 29.11.2022 an order was passed for further investigation, investigation was conducted and on 08.04.2023 final report was submitted and on 09.08.2023 which was treated as a complaint case. Further submission is that the opposite party no. 2 was not subjected to medical examination on account whereof the truth could not be revealed regarding commission of the offences and on the basis of ossification report, the age of the victim was found to be 19 years. Submissions have also been made that the present complaint is nothing but a counter blast on account of the fact that the applicant no. 2 had lodged first information report no. 314 of 2019 under Section 323, 307, 504 IPC read with Section 3(2)V of the SC/ST Act.
Decision
14. Accordingly, looking into the overall facts and circumstances of the case, the application stands disposed of, the applicants are at liberty to file a discharge application before the court of Additional District and Sessions Judge/Additional Special Judge, POCSO Act, Court No. 1 in Session Case/Complaint No. 2181/2023 within a period of three weeks from today i.e. by 20.06.2025 and on the filing of the discharge application, the court below shall decide the same preferably within three months. 15. Till the disposal of the discharge application, no coercive action shall be taken against the applicant no. 1 pursuant to summoning order dated 18.01.2025 in Session Case/Complainant No. 2181 of 2023, (Asin v/s. Arvind and others), under Sections 354, 323, 504, 506 I.P.C. and 7/8 POCSO Act and applicants no. 2 to 5 under Section 323, 504, 506 IPC, Police Station- Narkhi, District-Firozabad, pending before the Court of learned Additional District and Session Judge /Additional Special Judge POCSO Court No. 1, Firozabad. 16. The protection so accorded to the applicants shall be only in those contingencies wherein the applicants sticks to the timelines and does not violate any of the conditions of the order. In case of any violation, the protection stand vacated without reference to the Bench. 17. Needless to point out that this Court has not adjudicated the matter on the merits, however, it is open for the court below to pass an order strictly in accordance with law. Order Date :- 27.5.2025 Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad