Shweta Singh v. Dhirendra Singh) under Sections

4. The case of the applicant is that a first information report stood lodged by the opposite party no. 4 against the applicant under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act, being FIR No. 0227 of 2023 on 10.07.2023 with an allegation that the complainant/ opposite party No. 4 is the resident of District- Ballia and she is blessed with a daughter, victim who is minor of age 11 years and when she used to go to shop to bring certain items then the applicant used to molest her and exhibit indecent behavior. The said facts were complained by the victim to the complainant on 02.07.2023 at 5:00 in the morning, when the victim was in the house then the applicant herein barged into the house and he started molesting her And when the victim made hue and cry then the villagers came there and the applicant ran away. The complaint was made on the phone to the police, thereafter the applicant is threatening the complainant that the victim's modesty will be outraged on account whereof the opposite party No. 4/ complainant is under dilemma. Post lodging of the first information report, statement of the victim under Section 161 Cr.P.C. and Section 164 Cr.P.C. was recorded and thereafter on the basis of the statements of the independent witnesses, Kamlesh Verma, Swaminath Gupta, Mrigraj Singh and Krishna Singh, a final report came to be submitted on 26.07.2023. A protest petition was also preferred by the opposite party No. 4 and by virtue of the order dated 20.03.2024, it was treated as a complaint and post recording of the statement of the opposite party no. 4 under Section 200 Cr.P.C. and the victim under Section 202 Cr.P.C., the applicant has been summoned by the Court of Special Judge (POCSO Act), court No.08, Ballia, under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act.

5. Questioning the said order, the applicant has been filed the present application.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons, firstly, the allegations have been sought to be levelled for the offences under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act but the victim was not medically examined. Had the victim been medically examined then the truth have been surfaced, secondly, once a detailed investigation stood conducted and on the basis of the statement of the independent witnesses, a final report came to be submitted then there was no occasion or reason to have rejected, the final report while treating the case to be a complaint case. Thirdly, the order dated 20.03.2024 passed by the Special Judge (POCSO Act), court No.08, Ballia recites that the final report had been accepted but it proceeds to treat the case as a complaint case. Submission is that once final report came to be accepted then the proceedings would have dropped against applicant. Fourthly, the summoning order has been passed in a routine manner without due application of mind without translating the vital aspects. Fifthly, no such incident occurred and further while inviting attention towards in paragraph 13, it has been contended that the proceedings have to be instituted by the parties before competent court of law which became the basis for lodging of the complaint.

7. Learned State Law Officer as well as counsel for the opposite party No. 2 on the other hand submits that from the bare look of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 Cr.P.C., it would go to show that there is no material contradiction so as to out-rightly overrule the possibility of the commission of the offence alleged in the complaint. Submission is that not only the complainant but also victim, has made pinpointed allegations of commission of the offences, according to him, mere non-subjection to the medical examination would not be a ground to hold the summoning order bad.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. In the present case at hand, at the instance of the applicant, challenge has been raised to their order passed by the court below summoning the applicant under penal provisions. There are certain criterias which have to be adhered too in order to determine as to whether the summoning order suffers from legal infirmity or not. Amongst others one of the criteria inevitably would be the nature of the allegations in the complaint vis-a-vis the statements under Section 200 and 202 Cr.P.C. In case, there are no material contradictions and the witnesses supports the prosecution story then the case becomes triable and the Court would obviously be reluctant interfering at the stage of summoning. In the present case, there are pinpointed allegations levelled by the opposite party No. 2 in the complaint, whereby it has been alleged that on

02.07.2023 at 5:00 in the morning, when the victim was on alone in the house then the applicant herein barged into the house and exhibited indecent behaviour and committed the offences, pursuant whereto FIR was lodged under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act. The statements under Section 200 and 202 of the Cr.P.C. of the complainant and the victim also pinpointed the involvement of the applicant. Though the learned counsel for the applicant may be right in contending that post investigation, recording of the statements under Section 161 and 164 Cr.P.C. and all the independent witnesses, a final report came to be submitted but the same would not be in any manner whatsoever to be a ground to hold the summoning order bad, particularly, when in a complaint case what would be relevant is a statement under Section 200 and 202 of the Cr.P.C. The statement under Section 200 and 202 of the Cr.P.C. are supporting the prosecution case. Particularly, when in the statements under Section 200 Cr.P.C., incident has been clearly pinpointed on

02.07.2023 at 5:00 in the morning and when the applicant had committed the offences under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act and so much so, the statements of the victim are also on the same line giving the same dates i.e.

02.07.2023.

10. Apart from the same, non-subjection of the victim to medical examination would not be fatal, particularly, when it might be a ground which would weigh consideration at the stage, when a decision is to be taken during the trial as to whether the accused is to be convicted or acquitted. With respect to the argument that the order dated 20.03.2024 of the court below though accepting the final report proceeded to direct for recording of the statements under Section 200 and 202 Cr.P.C. is concerned, the same might be a typographical error, however, it will not dilute or extinguish the rights which have accrued to the opposite party No. 4 while filing a protest petition. Moreover, the statements under Section 200 and 202 of the Cr.P.C. are intact.

11. So far as the contention raised by the learned counsel for the applicant that since litigation are pending before the competent court of law between the applicant faction and the opposite party no. 2 faction which become the motive for lodging of the complaint is concerned, the same is not required to be gone into at this stage, particularly, it is a subject of defence which consideration whereof would arise only when the trial commences.

12. As regards, the submission of the learned counsel for the applicant that the summoning order has been passed in a mechanical manner without application of mind is concerned, the same is out of context. Particularly, when the summoning order takes into account, the nature of the allegations and the statements under Section 200 and 202 Cr.P.C. and prime facie accords satisfaction that the case is triable and not frivolous. Moreover, there is another facet of matter i.e. Section 29 of the POCSO Act, 2012, according to which, there is a presumption as to certain offences, according to which, where a person is prosecuted for committing or abating or attempting to commit any offence under Sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. The words employed by the legislature "the contrary to be proved" is of relevance, thus, it cannot be ruled out that trial is not to be conducted".

13. Nonetheless, the Hon'ble Apex Court in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 and the paragraph no. 23 culled out the following propositions of law which is enumerated hereinunder:- "i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

14. Cumulatively, analyzing the case from the four corners of law, the Court finds that no good ground is made out for interference at this stage, accordingly, the application is rejected.

15. Needless to point out that passing of this order may not be construed to be any expressions on the merits of the matter as it is open for the trial court to proceed with the matter and to decide the same strictly in accordance with law with utmost expedition. Order Date :- 8.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

4. The case of the applicant is that a first information report stood lodged by the opposite party no. 4 against the applicant under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act, being FIR No. 0227 of 2023 on 10.07.2023 with an allegation that the complainant/ opposite party No. 4 is the resident of District- Ballia and she is blessed with a daughter, victim who is minor of age 11 years and when she used to go to shop to bring certain items then the applicant used to molest her and exhibit indecent behavior. The said facts were complained by the victim to the complainant on 02.07.2023 at 5:00 in the morning, when the victim was in the house then the applicant herein barged into the house and he started molesting her And when the victim made hue and cry then the villagers came there and the applicant ran away. The complaint was made on the phone to the police, thereafter the applicant is threatening the complainant that the victim's modesty will be outraged on account whereof the opposite party No. 4/ complainant is under dilemma. Post lodging of the first information report, statement of the victim under Section 161 Cr.P.C. and Section 164 Cr.P.C. was recorded and thereafter on the basis of the statements of the independent witnesses, Kamlesh Verma, Swaminath Gupta, Mrigraj Singh and Krishna Singh, a final report came to be submitted on 26.07.2023. A protest petition was also preferred by the opposite party No. 4 and by virtue of the order dated 20.03.2024, it was treated as a complaint and post recording of the statement of the opposite party no. 4 under Section 200 Cr.P.C. and the victim under Section 202 Cr.P.C., the applicant has been summoned by the Court of Special Judge (POCSO Act), court No.08, Ballia, under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act.

5. Questioning the said order, the applicant has been filed the present application.

6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reasons, firstly, the allegations have been sought to be levelled for the offences under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act but the victim was not medically examined. Had the victim been medically examined then the truth have been surfaced, secondly, once a detailed investigation stood conducted and on the basis of the statement of the independent witnesses, a final report came to be submitted then there was no occasion or reason to have rejected, the final report while treating the case to be a complaint case. Thirdly, the order dated 20.03.2024 passed by the Special Judge (POCSO Act), court No.08, Ballia recites that the final report had been accepted but it proceeds to treat the case as a complaint case. Submission is that once final report came to be accepted then the proceedings would have dropped against applicant. Fourthly, the summoning order has been passed in a routine manner without due application of mind without translating the vital aspects. Fifthly, no such incident occurred and further while inviting attention towards in paragraph 13, it has been contended that the proceedings have to be instituted by the parties before competent court of law which became the basis for lodging of the complaint.

7. Learned State Law Officer as well as counsel for the opposite party No. 2 on the other hand submits that from the bare look of the allegations contained in the complaint vis-a-vis the statement under Sections 200 and 202 Cr.P.C., it would go to show that there is no material contradiction so as to out-rightly overrule the possibility of the commission of the offence alleged in the complaint. Submission is that not only the complainant but also victim, has made pinpointed allegations of commission of the offences, according to him, mere non-subjection to the medical examination would not be a ground to hold the summoning order bad.

8. I have heard learned counsel for the parties and gone through the records carefully.

9. In the present case at hand, at the instance of the applicant, challenge has been raised to their order passed by the court below summoning the applicant under penal provisions. There are certain criterias which have to be adhered too in order to determine as to whether the summoning order suffers from legal infirmity or not. Amongst others one of the criteria inevitably would be the nature of the allegations in the complaint vis-a-vis the statements under Section 200 and 202 Cr.P.C. In case, there are no material contradictions and the witnesses supports the prosecution story then the case becomes triable and the Court would obviously be reluctant interfering at the stage of summoning. In the present case, there are pinpointed allegations levelled by the opposite party No. 2 in the complaint, whereby it has been alleged that on

02.07.2023 at 5:00 in the morning, when the victim was on alone in the house then the applicant herein barged into the house and exhibited indecent behaviour and committed the offences, pursuant whereto FIR was lodged under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act. The statements under Section 200 and 202 of the Cr.P.C. of the complainant and the victim also pinpointed the involvement of the applicant. Though the learned counsel for the applicant may be right in contending that post investigation, recording of the statements under Section 161 and 164 Cr.P.C. and all the independent witnesses, a final report came to be submitted but the same would not be in any manner whatsoever to be a ground to hold the summoning order bad, particularly, when in a complaint case what would be relevant is a statement under Section 200 and 202 of the Cr.P.C. The statement under Section 200 and 202 of the Cr.P.C. are supporting the prosecution case. Particularly, when in the statements under Section 200 Cr.P.C., incident has been clearly pinpointed on

02.07.2023 at 5:00 in the morning and when the applicant had committed the offences under Sections 354, 452, 506 I.P.C. and Section 9M/10 of POCSO Act and so much so, the statements of the victim are also on the same line giving the same dates i.e.

02.07.2023.

10. Apart from the same, non-subjection of the victim to medical examination would not be fatal, particularly, when it might be a ground which would weigh consideration at the stage, when a decision is to be taken during the trial as to whether the accused is to be convicted or acquitted. With respect to the argument that the order dated 20.03.2024 of the court below though accepting the final report proceeded to direct for recording of the statements under Section 200 and 202 Cr.P.C. is concerned, the same might be a typographical error, however, it will not dilute or extinguish the rights which have accrued to the opposite party No. 4 while filing a protest petition. Moreover, the statements under Section 200 and 202 of the Cr.P.C. are intact.

11. So far as the contention raised by the learned counsel for the applicant that since litigation are pending before the competent court of law between the applicant faction and the opposite party no. 2 faction which become the motive for lodging of the complaint is concerned, the same is not required to be gone into at this stage, particularly, it is a subject of defence which consideration whereof would arise only when the trial commences.

12. As regards, the submission of the learned counsel for the applicant that the summoning order has been passed in a mechanical manner without application of mind is concerned, the same is out of context. Particularly, when the summoning order takes into account, the nature of the allegations and the statements under Section 200 and 202 Cr.P.C. and prime facie accords satisfaction that the case is triable and not frivolous. Moreover, there is another facet of matter i.e. Section 29 of the POCSO Act, 2012, according to which, there is a presumption as to certain offences, according to which, where a person is prosecuted for committing or abating or attempting to commit any offence under Sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. The words employed by the legislature "the contrary to be proved" is of relevance, thus, it cannot be ruled out that trial is not to be conducted".

13. Nonetheless, the Hon'ble Apex Court in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 and the paragraph no. 23 culled out the following propositions of law which is enumerated hereinunder:- "i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

14. Cumulatively, analyzing the case from the four corners of law, the Court finds that no good ground is made out for interference at this stage, accordingly, the application is rejected.

15. Needless to point out that passing of this order may not be construed to be any expressions on the merits of the matter as it is open for the trial court to proceed with the matter and to decide the same strictly in accordance with law with utmost expedition. Order Date :- 8.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad