Allahabad High Court
Faizan Alias Faizan Ahmed vs State Of U.P. And 3 Others on 17 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:166153
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 12467 of 2025
Faizan Alias Faizan Ahmed
.....Applicant(s)
Versus
State Of U.P. and 3 others
.....Opposite Party(s)
Counsel for Applicant(s)
:
Akhilesh Srivastava, Ambreen Masroor, Sadrul Islam Jafri, Saksham Srivastava
Counsel for Opposite Party(s)
:
Fatma Anjum, G.A., Mehdi Abbas
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri Akhilesh Srivastava along with Sri S.I. Jafri, learned counsel for the applicant as well as Sri Vikas Sharma, learned AGA for the State and Sri Zaheer Ashgar holding brief of Ms. Fatma Anjum 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 the application be decided on the basis of the documents available on record. With the consent of the parties, the application be decided at the fresh stage.
3. This application u/s 528 of BNSS has been preferred to quash the order dated 19.03.2025 passed by Special Judge (POCSO Act), Bulandshahr in Complaint Case No. 58 of 2023 (Kumari Rabab VS. Faizan) now registered as S.C. No. 691 of 2025 (State Vs. Faizan) by which applicant has been summoned to face trial under Section 376, 506 I.P.C. and Section 4 of POCSO Act, pending in the Court of Special Judge (POCSO Act), Bulandshahr.
4. The case of the applicant is that a first information report so lodged by the opposite party no. 2 on 25.03.2022 being FIR No. 0111 under Section 376 read with Section 506 IPC with an allegation that the opposite party no. 2, first informant/complainant, the resident of District Bulandshahr and the applicant herein had taken certain objectionable photos in a compromising position behind the back of the opposite party no. 2 and he proceeded to blackmail the applicant while threatening that he would never let the marriage of the opposite party no. 2 solemnized with other and against the will of the opposite party no. 2 he used to outrage the modesty of the opposite party no. 2 very often. Allegation is that on 03.01.2022 at 9:30 in the night when the opposite party no. 2 had gone to purchase a packet of tea and when she was returning then the applicant came in the way of the opposite party no. 2 and told her to accompany him to his house and he would delete the photos. However, when the opposite party no. 2 made a request that she would call her mother then the applicant uttered that it is a matter of only five minutes and there is no need to bring the mother and on the said assurance the opposite party no. 2 had gone to the house of the applicant and as soon as the opposite party no. 2 entered the house, the applicant locked the door and while threatening with a knife, outraged the modesty of the opposite party no. 2 pursuant whereto she became unconscious and after coming to her house she narrated the said incident to her mother and the applicant herein is alleged to have threatened that she should not disclose the said fact to anybody otherwise he would done to death the opposite party no. 2 and other relatives and thereafter, complaint was lodged but nothing happened followed by the first information report. Post recording of the statement under Section 161 Cr.P.C., of opposite party no. 2 wherein she narrated the entire incident, however, she claimed her age to be of 22 years and when she was told to undergo medical examination she refused, however, while inviting attention towards page 68 of the paper book, it is contended that the age shown to be of the opposite party no. 2 was 22 years, however, ossification test stood conducted and the age of the opposite party no. 2 was shown to be between 17-18 years and post recording of the statement under Section 164 Cr.P.C. wherein the age was shown to be 17 years, a final report came to be submitted on 14.07.2022 in favour of the applicant thereafter a protest petition came to be filed in which on 17.02.2023, an order came to be passed by the ACJM, Court no. 1, Bulandshahr for further investigation wherein the first final report was corroborated followed by a protest petition so preferred by the applicant on 03.07.2023 wherein the final report was cancelled and the case stood transformed into a complaint case. Statement under Sections 200 and 202 Cr.P.C. was recorded by the ACJM when it revealed that the case is to be tried by the Special Court, statement under Sections 200 and 202 Cr.P.C. was recorded by the competent court and thereafter, the summoning order dated 19.03.2025 came to be passed under Section 376/506 IPC read with Section 4 of the POCSO Act and the case was transformed from complaint case to a State case being a special case.
5. Questioning the said order, the present application has been filed.
6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that first of all the applicant has been illegally summoned under Section 4 of the POCSO Act particularly when as a matter of fact, it has come on record in the statement under Section 161 Cr.P.C. that the age of the opposite party no. 2 is 22 years and further in the document pertaining to the medical wherein the opposite party no. 2 has declined and refused to get her medically examined, the date has been shown to be 22 years and further in the ossification test, the age has been shown to be 17-18 years. Submission is that admission is the best piece of evidence and according to them, once in the statement under Section 161 and other documents i.e. ossification report, the age has been shown to be 17-18 years, then in view of the judgment of Delhi High Court in Courts on its own Motion Vs. State of NCT of Delhi: Criminal Reference No. 2 of 2024 decided on 02.04.2024 while answering the question "Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of age estimation report of victim, the cases where the age of victim is proved to be bone age ossification report, it was held that in such cases of sexual assault wherever the court is called upon to determine the age of the victim based upon bone age ossification report, the upper age in reference shall be considered as the age of the victim. Learned counsel for the applicant submits that though in the statement under Section 164 of the Cr.P.C, the victim has come up with an age being 17 years and the court below without considering the ossification report and the impact and the import of the judgment of the Delhi High Court has proceeded to summon the application under Section 4 of the POCSO Act.
7. It is also contended that earlier also the opposite party no. 2 had lodged a first information report dated 03.01.2022 against the applicant under Section 506 IPC read with Section 67 of the I.T. Act with relation to the offences dated 03.01.2022 being FIR No. 0005 of 2022 in which during investigation, nothing was found against the applicant and, thus, charge sheet was submitted against others and not against the applicant. Contention is that the applicant has been falsely implicated and all sorts of devices are being deployed to entangle the applicant. Further submission is that there was no extra inputs available with the Court to summon the applicant particularly when a final report post investigation came to be submitted exonerating the applicant pursuant to an order for further investigation, the final report came to be corroborated/approved and without considering the said aspects, the applicant has been summoned. It is also contended earlier the case was a State case which become a complaint case and now by virtue of the impugned summoning order again, the case has been treated to be a State case to be tried by Special Court, thus, submits that the entire proceedings is not as per law.
8. Learned AGA as well as the counsel for the opposite party no. 2 submits that whatever might be what would be relevant at the stage of summoning in a complaint case is the statement under Section 200 and 202 and once the statements are intact and support the prosecution case then the case becomes triable in nature. They further submit that so far as the contention sought to be raised with regard to the fact that the opposite party no. 2 is major in view of the ossification report ranging the age of the opposite party no. 2 from 17 to 18 years and the medical document whereby showing the date of the opposite party no. 2 being 22 years when she has refused medical examination and also the statement under Section 161 Cr.P.C. showing the age to be 22 years but the crucial question which would arise would be the aspect of the matter that in statement under Section 164, the age has been shown to be 17 years and in the present proceedings, it would not be appropriate for this Court to record a definite finding on the age of the opposite party no. 2 particularly the same needs leading of evidence. He submits that whatever would be impact of the judgment of the Delhi High Court will be dependent upon the determination of the age and the range which would follow the same. According to him, since the offences under Section 4 of the POCSO Act, 2012 and 376 are to be tried by the court of Sessions, then obviously the matter is to be sent to the special court/Session Court in that regard. At this stage, learned AGA as well as counsel for the opposite party no. 2 submits that it is for the applicant to move a discharge application taking the aforesaid grounds.
9. To such a submission, learned counsel for the applicant has no objection to the same.
10. I have heard the submissions so made across the bar and perused the record.
11. Apparently, a first information report came to be lodged by the opposite party no. 2 against the applicant relatable to the commission of the offences under Section 376, 506 IPC, at the time of lodging of the complaint, it was not the case of the opposite party no. 2 that she was a minor and that is why the FIR was not lodged under Section 4 of the POCSO Act. So much so in the statement under Section 161 and when the opposite party no. 2 had refused to get her medically examined, the age was shown to be approximately 22 years but in the ossification test, the age came to be 17 to 18 years thereupon, in the statement under Section 164 the age was shown by the opposite party no. 2 to be 17 years thereupon a final report came to be submitted which on further investigation, final report was corroborated and thereafter second protest petition came to be filed which was transformed into a complaint case and post recording of the statements under Section 200 and 202 Cr.P.C. by the ACJM and when it was realized that the same is to be tried by a Special Court/Sessions Court statement under Section 200 and 202 Cr.P.C. was recorded and while transforming the case from complaint case to a State case the applicant came to be summoned under Section 376 IPC read with Section 4 of the POCSO Act. In the opinion of the Court whatever arguments are being sought to be raised regarding the age of the applicant and the reliance so placed upon the decision of the Delhi High Court as noted above on the basis of the said documents a conclusive finding is not required to be recorded in the present proceedings. As suggested by the counsel for the opposite party no. 2 which has not been opposed by learned AGA and gracefully accepted by learned Senior Counsel for the applicant that applicant shall prefer a discharge application, thus, it is for the applicant to prefer discharge application.
12. Accordingly, the application stands disposed of directing the applicant to prefer a discharge application by 12.10.2025 before the court below taking all legal and factual grounds and on the said motion, the court below shall decide the discharge application strictly in accordance with law without being influenced or obsessed by any of the observations made hereinabove.
13. Till the discharge application is decided no coercive action shall be taken in the proceedings of order dated 19.03.2025 passed by Special Judge (POCSO Act), Bulandshahr in Complaint Case No. 58 of 2023 (Kumari Rabab VS. Faizan) now registered as S.C. No. 691 of 2025 (State Vs. Faizan) by which applicant has been summoned to face trial under Section 376, 506 I.P.C. and Section 4 of POCSO Act, pending in the Court of Special Judge (POCSO Act), Bulandshahr.
14. Protection so accorded today, shall only be available to the applicant in those contingencies wherein, he sticks to the timeline and does not commit any default to the order passed by this Court. The court below shall decide the discharge application strictly in accordance with law with independent application of mind.
(Vikas Budhwar,J.) September 17, 2025 Rajesh