Raj Kumar v. Sumit and Ors) U
Case Details
Neutral Citation No. - 2025:AHC:130150 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 17679 of 2025 Applicant :- Sumit And 3 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ritesh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
lodging the complaint particularly when there is nothing on record even to remotely suggest that criminality has been slapped. Lastly he submits that the summoning order has been passed in a routine manner on mere asking without recording any prima facie finding regarding application of penal sections. 10. Learned AGA on the other hand submits that from the narration of the allegations contained in the complaint vis-a-vis the statement U/s 200 & 202 Cr.P.C and top of it of the victim the role has been assigned on the applicant and merely because the victim was not subjected to medical examination will not render the summoning order invalid. 11. I have heard the submissions so made across the bar and perused the record carefully. 12. Apparently, at the instance of the applicants, challenge has been raised to a summoning order whereby the applicants have been summoned in a complaint U/s 376D read with section 5g/6 of the POCSO Act. There are various parameters which are put to motion in order to determine as to whether the summoning orders suffers from infirmity or not amongst other one of them would inevitably be the nature of the allegations contained in the complaint vis-a-vis the statement U/s 200 & 202 Cr.P.C. In case there are material contradictions and variations which goes to the root of the matter then the court would in a given case to interfere. Applying the said principles of law in the present facts and circumstances, it is more than evident that a complaint was lodged in proceedings U/s 156 (3) Cr.P.C. by the father of the opposite party no.2 against the applicant with relation to an incident dated 12.01.2022 wherein it is alleged that in the noon, the applicants had barged into the house of the sister of opposite party no.2 and committed the gang rape in the agricultural field. The prosecution theory stands supported in the statement of the complaint U/s 200 Cr.P.C., the sister of opposite party no.2 U/s 202 Cr.P.C., Vinay Kumar and on top of it victim the statement U/s 202 Cr.P.C. According to the counsel for the applicant that there are material contradictions which completely erode the prosecution theory in the background of the fact that though as per the complaint, the offences were committed in the agricultural field but the victim on her own sweet will returned after 14 days. Thus it is an open and a shut case of malicious prosecution is concerned, the same cannot be accepted for the reason that the statement of the victim U/s 202 Cr.P.C. is intact and she support the prosecution theory. Moreover there are no such material contradiction or variations which goes to the root of the matter demolishing the prosecution theory. As rather to the contrary the statement U/s 200 & 202 Cr.P.C supports the prosecution theory. As regards the next submissions of learned counsel for the applicants that the victim was not subjected to medical examination thus adverse inference is to be drawn which makes and the summoning order vulnerable and fatal is concerned, the same is not liable to be accepted at the stage when challenge is being raised to the summoning order particularly when the effect and the impact and the ramification of non subjection to medical examination would be tested at the time when the trial commences and the stage arises when a decision is to be taken as to whether the accused are to be convicted or acquitted. With respect to the argument raised by the learned counsel for the applicant that there has been delay in lodging of the complaint and the proceeding U/s 156 (3) Cr.P.C. is concerned, the same at best is a matter of defence. As a hard and fast rule cannot be applied as the same depends upon the various circumstances including the place where the incident takes place whether it is rural or urban area. There is another facet of the matter i.e. section 29 of the POCSO Act which provides for presumption as to certain offences according to which where a person is prosecuted for committing or abetting or attempting to commit any offence U/s 3, 5, 7 & 9 of the Act, the Special Court shall presume that person has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. The word employed "unless the contrary is proved" marks significance as it per-supposes conduction of trial in a given case.
Arguments
1. Heard Sri Ritesh Kumar Singh, learned counsel for the appellant and Sri S.K. Singh, learned AGA for the State. 2. This Court on 19.05.2025 issued notices to opposite party no.2 & 3 and there is an office report dated 30.07.2025 that the notices served upon opposite party nos. 2 & 3. 3. Till dictation of the order, nobody has put in appearance on behalf of opposite party nos. 2 & 3. 4. Treating the service to be sufficient, the Court is proceeded with the matter. 5. A joint statement has been made by the learned counsel for the applicant as well as Sri S.K. Singh, learned AGA for the State that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. 6. With the consent of the parties, the application is being decided at the fresh stage. 7. This is an application filed U/s 528 BNSS for quashing the impugned summoning order date 17.02.2024 passed by Additional District and Sessions Judge, court no.13/ Special Judge (POCSO Act) Kanpur Dehat as well as the entire proceeding of Sessions Case no. 339/ 2022 (Raj Kumar vs. Sumit and Ors) U/s 376D IPC and U/s 5g/ 6 POCSO Act, P.S. Shivli, District Kanpur Dehat. 8. The case of the applicant is that proceeding U/s 156(3) Cr.P.C. came to be lodged by the opposite party no.2 on 29.03.2022 for the offences U/s 376D, 363 IPC read with Section ¾ POCSO Act wherein it is alleged that the opposite party no.2 is the resident of village Champatpur Majra, Raipalpur, P.S Shivli, District Kanpur Dehat. It is alleged that the minor daughter of opposite party no.2/ victim who is aged about 17 years old had gone to the house of the sister of opposite party no.2 on 18.12.2021 in connection with a marriage in Gram Patihaganj, P.S. Chaubepur, District Kanpur Nagar and on 12.01.2022 at 3:00 in the evening when the opposite party no.2 sister had gone to bring medicine then the applicants barged into the house and finding the victim to be all alone lifted and took away the victim and in an agricultural field they committed gang rape. Pursuant whereto the victim became unconscious and they left the victim. The allegation is that when the victim gained consciousness then she narrated the entire incident. A telephonic call was made by the sister of opposite party no.2 and then the opposite party no.2 had proceeded to police station for lodging the complaint. However the attempt was in vain. Thus on 08.02.2022 a registered was sent to the SP Kanpur Dehat but nothing was done, hence proceeding U/s 156(3) Cr.P.C. came to be lodged on 29.03.2022 and post recording of the statement U/s 200 Cr.P.C. of the complainant, 202 Cr.P.C. of sister of opposite party no.2 Devaki, Vinay Kumar and the victim. The court of Additional District and Sessions Judge, court no.13 Special Judge (POCSO court), Kanpur Dehat proceeded to summon the applicants U/s 376D IPC read with section 5g/6 of the POCSO Act on 17.02.2024. Questioning the summoning order, the applicants has preferred the present application. 9. Learned counsel for the applicant has submitted that the allegations contained in the complaint are nothing but a bundle of lies just in order to falsely implicate and roped in the applicant in the present case. The submission is that the falsity in the complaint is writ large that the incident is alleged to have been dated 12.01.2022 but for the first time a written complaint was lodged before the Superintendent of Police on 08.02.2022 and the complaint was preferred on 29.03.2022. He submits that a well developed story was cooked up with deliberation just in order to falsely implicate the applicant as there is no explanation worth consideration about the delay in either lodging of the complaint before the S.P. Kanpur Dehat or proceeding U/s 156 (3) Cr.P.C. Further submission is that though the allegations are referable to gang rape but the victim was not put to medical examination then adverse inference is to be drawn and the entire prosecution story stands eroded. Further submission is that there happens to be material contradictions in the statements recorded U/s 200 & 202 Cr.P.C., vis-a-vis the allegations in the complaint, for the simple reason that in the complaint it has been alleged on 12.01.2022 the applicants herein at 3:00 in the noon had committed the offence in the agricultural field. However, in the statement under section 200 Cr.P.C. the complainant, it has been alleged that the victim came on her own will after 14 days. The submission is that it is improbable and beyond comprehension that gang rape is being committed in the village and the villagers are not aware about the same. He further submits that there is ulterior motive in
Decision
13. Cumulatively analysing the case from the four corners of law, this Court does not find the present case to be a fit case for exercise of the inherent jurisdiction under section 528 BNSS. Accordingly interference is declined and the present application stands disposed off leaving it open for the applicants to contest the trial while taking all legal and factual grounds. 14. Needless to point out that passing of the order today may not be construe to be an expression that this Court has adjudicated on the merits of the the matter as the court has confined its observation with regard to the summoning order. Order Date :- 31.7.2025 /C. MANI (Vikas Budhwar,J.) Digitally signed by :- CHANDRAMANI VERMA High Court of Judicature at Allahabad