Dulari Devi v. Meera Devi and others), under Sections
Case Details
Neutral Citation No. - 2025:AHC:127864 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 22308 of 2025
Legal Reasoning
Applicant :- Meera Devi And 3 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Gyanendra Prakash Srivastava Counsel for Opposite Party :- Udai Shankar Chauhan,G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Gyanendra Prakash Srivastava learned counsel for the applicants, Sri S.K. Singh, learned AGA for the State and Sri Udai Shankar Chauhan, learned counsel for the opposite party no.2 2. A joint statement has been made by learned counsel for the parties that they do not propose to file any affidavit and application which is decided on the basis of the documents available on the record. With the consent of the parties, the application is being decided at the fresh stage. 3. This is an application filed under Section 528 of the B.N.S.S. for quashing the entire proceeding of Complaint Case No. 65 of 2024 (Dulari Devi Vs. Meera Devi and others), under Sections 354, 452, 323, 504, 506 I.P.C. and 7/8 Protection of Children From Sexual Offences (POCSO) Act, Police Station Muhammadabad Gohna, District Mau including summoning order dated 19.04.2025 passed by learned Special Judge (Child Court) Court No.1/Additional Sessions Judge Mau. 4. The case of the applicants is that the opposite party no.2 had instituted the proceedings under Section 156(3) Cr.P.C. on 22.4.2024 against the applicants and three others and as many as four unnamed accused with an allegation that the complainant is the resident of district Mau and the applicants no. 1 and 3 have been visited the house of the opposite party no.2 in connection with the marriage wherein a proposal was tendered to get the marriage done with the daughter of the opposite party no.2 however, since the daugther of the opposite party no.2 was studying and she wanted to excel and obtain a job thus the proposal was not accepted. The allegation is that on 18.3.2024 when the main door of the house of the opposite party no.2 was locked at 12 in the noon the applicants herein barged into the house, they were armed with pointed and blunt weapons and with the aid of ladder they came into the house through a window and started hurling abuses and also assaulted and committed Marpeet with the opposite party no.2 and even proceeded to loots and to break the items and the victim who happens to be the grand daughter of the opposite party no.2, who is minor was making Video which was seen by the applicant no.4 and he came a blow to the victim who fell down and he sat upon her and tore the cloth which she was wearing and she became half-naked and exhibited to the indecent gestures then the applicant no.1 and 2 told the applicant no.4 to outrage the modesty of the victim, the husband of the opposite party no.2 is a heart patient became unconscious and when the opposite party no.2 started making hue and cry then the labours who were working in adjacent house came and thereafter the applicants therein took away the valuables and Rs.25000/- cash, gold ornaments etc. and they were sitting outside the house for a period of one hour and nobody could come for the rescue of the applicants and thereafter a written complaint was also sent to the police for lodging of the FIR and since the FIR was not lodged the impugned proceedings came to be instituted on 22.4.2024. Post recording of the statement of the opposite party no.2 under Section 200 Cr.P.C., Devendra Chauhan, Ajeet Chauhan and Sachin and victim under Section 202 Cr.P.C. the applicant no.4 came to be summoned under Sections 354, 452, 323, 504, 506 IPC read with Section 7/8 of the POCSO Act and the rest of the applicants under Sections 452, 323, 504, 506 IPC on 19.4.2025. 5. Questioning the summoning order the present application has been preferred. 6. Learned counsel for the applicants has submitted that the allegations so contained in the complaint are nothing but a bundle of lies. The applicants had no point of time committed such offence. Submission is that in case the victim was subjected to the offences under Section 354 IPC read with Section 7/8 POCSO Act then it was imperative to get the medical examination done however, no medical examination was done. Further submission is that even otherwise it is quiet improbable and inconceivable that at the noon time when the doors are locked the applicants which includes females also would climb through ladder and get a entry through the window. 7. Learned counsel for the applicants has submitted that there are no independent witness so as to show that there is any weight in the prosecution theory. He has further submitted that first information report also stood lodged against the son of the opposite party no.2 namely Umesh Chauhan when he had made physical relationship with the applicant no.2 herein with regard to assurance of marriage being FIR No.95 of 2024, under Sections 376, 323, 504, 506 IPC, Police Station Muhammadabad Gohna, District Mau and just in order to exert pressure and to dictate terms false and frivolous allegations have been sought to be levelled which have become basis of summoning. He has also submitted that the summoning order has been passed merely on asking without there being any prima facie recording of the satisfaction of application of the penal sections. He has thus submitted that the summoning order be set aside 8. Learned AGA and learned counsel for the opposite party no.2 while countering the submissions made by the learned counsel for the applicants have submitted that a perusal of the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 Cr.P.C. would reveal that the prima facie offences are made out particularly and there are no material contradictions or inconsistency making the case triable in nature. 9. I have heard the submissions so made across the bar and perused the record carefully. 10. Apparently, at the instance of the applicants challenge has been raised to the summoning order whereby the applicants have been summoned by the court below under the penal sections. There are certain criterias which have to be adhered to in order to test whether the summoning order suffers from infirmity or not and one of the criteria inevitably would be the nature of the allegations contained in the complaint vis-a-vis the statements under Sections 200 and 202 Cr.P.C. In case there are no material contradictions or variations in the statements under Sections 200 and 202 Cr.P.C. vis-a-vis the allegations contained in the complaint that the case becomes triable and the court would be reluctant in interfering until and unless there are glaring facts which totally overrule the occurrence of the incident. Applying the said principles of law, in the present facts of the case, it is more than evident then a complaint was lodged by the opposite party no.2 who happens to be grand mother of the victim with an allegation that on 18.3.2024 at 12 noon the applicants herein with the aid of ladder entered into the house through a window and thereafter they committed the said offences while administering beating looting and assaulting the opposite party no. 2 as well as her husband. Further the allegations is that the applicant no.4 tore the cloths of the victim while disrobing her and sat on her and thereafter exhibited indecent gestures and attempt was being made to outrage the modesty. The statement of the complainant under Section 200 Cr.P.C. supports the prosecution theory and so much so the statements Devendra Chauhan, Sachin Chauhan and Ajeet Chauhan under Section 202 Cr.P.C. as well as the victim also pinpoints criminality upon the applicants. Thus in view of the said facts the case becomes triable in nature. As a matter of fact, this Court is not required to go into merits of the allegations and they are subject matter of trial. 11. With respect to the arguments of the learned counsel for the applicants that the grand-daughter of the opposite party no.2 was not subjected to medical examination, thus adverse entrance is to be drawn and the complaint is bound to fall is not convincible particularly when the effect, impact and the ramification of non- subjection of the victim to medical examination is a factor which is to be considered during the trial when a decision is to be taken whether the accused is to be acquitted for convicted. 12. In so far as the argument raised by learned counsel for the applicants is that the first information report stood lodged by the applicant no.2 against the son of the opposite party no.2 on 5.4.2024 in Case Crime No. 95 of 2024 under Sections 376, 323, 504, 506 IPC, and the same is nothing but a counterblast and a retaliation is concerned the same at best is a defence, consideration whereof would be necessitated if raised during the course of the trial. There is another facet of the matter i.e. with regard to Section 29 of the POCSO Act, according to which there is presumption as to certain cases where a person is prosecuted for committing or abating for attempting to commit any offence under Sections 3, 5, 7, & 9 of the Act, the Special Court shall presume that the such person has committed or abated or attempted to commit the offence as the case may be, unless the contrary is proved. The employing of the word "unless contrary proved "marks significance and pre supposes trial in a given case. 13. Looking into the case of four corners of law and also the extent of judicial intervention in the proceedings under Section 482 Cr.P.C./528 BNSS the Court does not find that the allegations in the complaint are frivolous so as to outrightly overrule the allegations. As a matter of fact the case becomes triable. Further more the extent of judicial intervention in the matters wherein challenge has been raised to the summoning order came up for consideration in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918. wherein the note caution was flagged that in a routine manner interference is not to be resorted to so as to scuttle the proceedings. The case of the applicant does not fall within the exceptional category so as to warrant interference.
Decision
14. Accordingly, interference is declined, application stands disposed of leaving it open to the applicants to raise all legal and factual issues before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered in accordance with law. 15. Needless to point out that any observation made in the order is confined to the challenge raised to the summoning order and the same need not be construed to be an expression on the merits of the matter. 16. This Court has no reason to disbelieve that in case, applicants move appropriate proceedings before the court below for enlargement of bail, then the same may be decided with most expedition in accordance with law of the land. Order Date :- 31.7.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad