Smt. Geeta v. Ishwar and others), whereby the
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 34442 of 2025 Ishwar Chand Sharma And 3 Others State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) Counsel for Opposite Party(s) Pratima Vishwakarma : : G.A. Court No. - 75 HON'BLE VIKAS BUDHWAR, J. 1. Heard Ms. Pratima Vishwakarma, learned counsel for the applicants and Sri J.P. Singh, learned A.G.A. for the State and Sri Awadhesh Kumar Mishra, learned counsel for O.P. No.2. 2. A statement has been made by Sri Awadhesh Kumar Mishra, that he has filed his vakalatnama on behalf of O.P. No.2 and he has also produced a copy of the receipt, which is taken on record and marked as Appendix 'A'. According to him, he has complete instructions and he does not propose to file any affidavit and the application be decided on the basis of the documents available on record.
Facts
3. With the consent of the parties, the application is being decided at the fresh stage. 4. This is an application under Section 528 of BNSS preferred by the applicants for quashing the impugned summoning order dated 18.08.2025 passed by the Court of Special, Judge, Excusive Court (POCSO Act), Additional Session Judge, Meerut, in Complaint Case No.05 of 2025
Legal Reasoning
any prima facie satisfaction and has also not considered the aspect of the matter that no offences are made out. 8. Learned A.G.A. as well as learned counsel for O.P. No.2 have submitted that a perusal of the statement under Section 223 of BNSS and on the top of it of the statement of the victim under Section 225 of BNSS, a pinpointed criminality had been attributed upon the applicants and there happens to be no material contradictions or variations so as to uprule the possibility of the commission of the offences and the case is triable. 9. I have heard the submissions so made across the Bar and perused the records carefully. 10. Apparently, at the instance of the applicants, challenge has been raised to a summoning order, whereby the applicants have been summoned under the Penal Sections. There are certain parameters which have to be taken into consideration before coming to a conclusion on prima facie basis whether the case is triable or not and one of the said criteria would inevitably be the allegations contained in the complaint vis-à-vis the statements made under sections 223 and 225 of BNSS. In case, there are no material contradictions which goes to the root of the matter, then the case becomes triable and the Court would be reluctant in interfering. Applying the said principles in the present facts of the case, it emerges that the O.P. No.2 who happens to be mother of the victim and the wife of applicant no.1 and with respect to rest of the applicants, who are mother- in-law, sister-in-law and brother-in-law, allegations have been leveled upon applicant no.1 and applicant no.4, husband and brother-in-law regarding outraging the modesty of minor victim. The statement under section 223 of the BNSS of complainant is supporting the prosecution theory and so much so on top of it, the victim in her statement under section 225 of BNSS has made pinpointed allegations against applicant no.1 and applicant no.4, thus the case becomes triable in nature At the stage of summoning, this Court is not required to delve into the veracity and the trueness of the allegations as the same are subject matter of trial, 5 NA528 No. 34442 of 2025 as what is to be seen is whether prima facie offences are made out so as to make the trial being given a logical end, post commencement. 11. As regards the contention of the learned counsel for the applicants that the victim was not subjected to medical examination, thus the entire prosecution theory is false is not convincible, particularly when non- subjection of the victim to medical examination is an issue whose strength and velocity is to be seen when the trial commences and when a decision is to be taken whether it is a case of acquittal or conviction. In other words, adverse inference is to be drawn during the trial and not at the stage of summoning. With respect to objection of the learned counsel for the applicants that the parties are at loggers head and the present proceeding is nothing but a retaliation and a counter blast just in order to deploy pressure tactics is concerned, the same at best be a defence, consideration whereof would be required only when raised at the time when the trial commences. 12. There is another aspect of the matter, which needs consideration that is with respect to Section 29 of the Protection of Children from Sexual Offences Act, 2012, which is with respect to presumption as to certain offences, according to which where a person is prosecuted for committing, abetting or attempting to commit any offence under Section 3, 5, 7 and 9 of the 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 ‘unless the contrary is proved’ marks significance as it presupposes conduction of trial. 13. Bearing in mind the fact that the applicant nos. 2 and 3, who are mother-in-law and sister-in-law and allegation against them is of voluntarily causing hurt and they have been summoned under Section 115(2) of the BNS, 2023 and considering the over all facts situation and nature of the allegation, it would be appropriate for them to prefer a discharge application. 14. Accordingly the application is being decided in following terms:- (a) The applicant no.2 Smt. Jaywati and applicant no.3 Indu Sharma are directed to file a discharge application by 10.10.2025 before the court below and the court below shall decide the discharge application strictly in accordance with law and till the discharge application is decided, no 6 NA528 No. 34442 of 2025 coercive action shall be taken against the applicant nos. 1 and 3 in Complaint Case no.5 of 2025, Smt. Geeta vs. Ishwar and others under Section 115(2) of BNS, 2023. (b) As regards the applicant no. 1 Ishwar Chand Sharma and applicant no.4 Sanjeev Sharma, the summoning order dated 18.08.2025 under section 65(1) of B.N.S. and 3/4 POCSO Act, is upheld. It shall be open for the applicant nos. 1 and 4 to contest the proceedings before the court below while taking all the legal and factual grounds and this Court has no reason to disbelieve that the court below shall consider the same in correct perspective.
Arguments
(Smt. Geeta vs. Ishwar and others), whereby the applicant no.1 and 4 have been summoned under section 65(1) of B.N.S. and 3/4 POCSO Act, whereas applicant no. 2 and 3 have been summoned under section 115(2) of the B.N.S, arising out of application Registration No. 60 of 2024 under section 65, 74, 352, 351(2), 115 B.N.S, and 3/4 POCSO Act, Police Station Ganganagar, District Meerut.. 5. The case of the applicants is that on 11.09.2024, a complaint came to be lodged by O.P. No.2 under Sections 65, 74, 352, 351(2), 115 BNS read 2 NA528 No. 34442 of 2025 with Section 3/4 of POCSO Act against the applicants, who happen to be husband, mother-in-law, sister-in-law and brother-in-law with the allegation that the O.P. No.2 happens to be the wife of applicant no.1, Ishwar Chand Sharma. The allegation is that the marriage of the O.P. No.2 was solemnized with applicant no.1 in the year 2008 and the marriage of sister of the O.P. No.2 was solemnized with the brother of applicant no.1. With the wedlock of O.P. No.2 and the applicant no.1, two babies were born, one is minor daughter of 14 years age and the son of 13 years of age. Since there happens to be family dispute between the O.P. No.2 and her sister, the applicants herein had kept both the children of the O.P. No.2 and had lodged frivolous complaints/ criminal cases against the brother and the sister of O.P. No.2. Allegation is to the extent that applicant no.1, husband, is a drankard, who had bad eyes upon the victim and used to outrage her modesty and when the same was complained by the victim before the grand-mother and bua, then she was administered beating and told to maintain silence. It is alleged that the applicant no.1 used to administer threat of murdering them and the husband of the O.P. No.2 had sent the victim on 13.03.2024 to the house of the sister of the applicant no.1 and Jija. On gaining information about outraging of the modesty of the victim, the applicant no.4, who happens to be brother-in- law also outraged the modesty of the victim, which was again complained of but the victim was administered beating and abuses were hurled, on account whereof, she became ill, and on 06.05.2024, at about 10:30 in the morning, the victim came to the house of O.P. No.2 and narrated the said story and a written complaint was sent to the S.S.P. and on 03.06.2024, when the daughter of the O.P. No.2 and her mausi had gone to Ghaziabad Court with respect to do pairvi of a case under Section 498-A IPC, then the applicants met them and infront of Parmita, he threatened her that the victim should take back the complaint, otherwise he would chop her and throw her body in canal. Thereafter on 10.06.2024, proceedings under Section 156(3) of CrPC came to be lodge before the Court of Ghaziabad, however, the same was rejected on the ground of territorial jurisdiction and thereafter the present complaint has been lodged. Post-recording of the statement under Section 223 of BNSS of O.P. No.2 followed by the statement under Section 225 of BNSS of the victim and after compliance of the provisions contained under first proviso to Sub-section (1) of Section 223 of BNSS on 18.08.2025, the applicant no.1 and applicant 3 NA528 No. 34442 of 2025 no.4 were summoned under Section 65(1) of the BNS read with Section 3/4 (2) of the POCSO Act and the applicant nos. 2 and 3 under Section 115(2) of BNS. 6. Questioning the summoning order, the present application has been filed. 7. Learned counsel for the applicants has submitted that the summoning order cannot be sustained even for a single moment. Elaborating the said submission, it is contended that it is highly inconceivable and improbable that the applicant no.1 and applicant no.4, who happen to be husband and brother-in-law of the O.P. No.2 would outrage the modesty of the victim, who happens to be the real daughter of applicant no.1. Submission is that the entire allegations contained in the complaint are omnibus and general, as there is no date mentioned, when the victim was subject to outraging her modesty and less to say about the fact that there is no medical report available on record. It is also contended that there are several cases being instituted by the O.P. No.2 against the family members of the applicants, being FIR/Case Crime No.93 of 2011, under Sections 498-A, 323, 324 IPC read with Section 3/4 of the D.P. Act, in which applicant no.1 has been granted bail on 27.11.2017, Complaint Case no.443 of 2013 under Sections 12, 17, 18, 19, 20, 21 and 22 of the Protection of Women from Domestic Violence Act, 2005, Case no.720 of 2023, under Section 12 of Domestic Violence Act, 2005, and Case no.134 of 2024 under Section 326, 327, 323, 504, 506, 354 IPC, in which the applicants have obtained bail. Further submission is that the applicants have also lodged proceedings under Section 13(1) of the Hindu Marriage Act being Case No.1325 of 2022, FIR No.105 of 2016, under Section 307, 452, 323, 504 IPC, FIR no.238 of 2018, under Section 302 IPC and FIR No.220 of 2024 under Sections 75, 352, 115(2), 352(2), 353(2) BNS. Submission is that the parties are at loggers head as cross cases have been filed and the present proceeding is nothing but a counterblast and retaliation and it can be better be said to be a pressure tactics to forestall and to withdraw the present proceeding, which had been lodged against the O.P. No.2. Learned counsel for the applicants has also submitted that the applicant no.1 has submitted the application of the Superintendent of Police, through Jan Sunvayee Portal on 08.05.2024, another application was submitted by the applicant no.3 before the District Magistrate, wherein it was categorically stated that the daughter of the applicant no.1 had been 4 NA528 No. 34442 of 2025 kidnapped by the family members of the O.P. No.2 and subsequently, the applicants were threatened of dire consequences. Submission of the learned counsel for the applicants is that the entire allegation is nothing but a bundle of lies and further the court below on the basis of the tailormade statements had summoned the applicants without recording
Decision
15. With the aforesaid observations, the application stands disposed of. September 15, 2025 N.S.Rathour (Vikas Budhwar,J.) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad