Allahabad High Court
Dharmendra And 5 Others vs State Of U.P. And 3 Others on 22 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:87341 Court No. - 73 Case :- APPLICATION U/S 482 No. - 2781 of 2025 Applicant :- Dharmendra And 5 Others Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jai Kishan,Vipin Kumar Counsel for Opposite Party :- G.A.,Indu Shekhar Tripathi,Sandeep Kumar Gupta Hon'ble Vikas Budhwar,J.
1. Heard Shri Jai Kishan, learned counsel for the applicants and Sri S.P. Singh, learned State Law Officer for the State as well as Shri Sandeep Kumar Gupta, counsel for opposite party no. 2.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. The case set-forth by the opposite party no. 2 in its complaint dated 27.03.2023 is that the complainant is a resident of District-Etah and the victim happens to be his niece who is 16 years of age on the date of the incident i.e. 21.03.2023 at 7'O clock in the morning, the applicant no. 1 herein barged into the house of the opposite party no. 2 and with ill-intentions proceeded to bite the left side of the chest attempting to commit a bad act and when the victim screamed then the opposite party no. 2 and the mother of the victim ran to rescue the niece of the opposite party no. 2 and at that point of time, the applicant no. 1 proceeded to go away while pointing a country-made pistol making loud noises and on account of the said loud noises, the applicant nos. 2 to 6 who happened to be the relative of the applicant no. 1 entered into the house and with the help of the hard and blunt object while using their fist and legs started assaulting, pursuant to which the complainant-faction sustained injuries. Though attempts were made to lodge a first information report but on account of the threat administered by the applicants, the written report could not be submitted and thereafter on 22.03.2023, a registered complaint was sent to the Senior Superintendent of Police, Etah and since nothing further proceeded with the same, led to filing of the complaint on 27.03.2023.
4. The complaint preferred by the applicants was assigned number W.S.C.C. 80 of 2023 (Vinod Kumar v. Dharmendra and others) and the statement of the complainant under Section 200 Cr.P.C. followed by the statement of the mother of the victim under Section 202 Cr.P.C. and of the victim under Section 202 Cr.P.C. was recorded and the Court of Special Judge (Exclusive Court/ POSCO Act), Etah, proceeded to summon the applicant no. 1, under Sections 147, 149, 323, 354, 504, 506 IPC and Section 8 of POSCO Act and as with regard to the rest of the applicants, they were summoned under Sections 147, 149, 323, 504, 506 IPC by order dated 01.10.2024.
5. Questioning the summoning order, the applicants has been filed the present application.
6. Learned counsel for the applicants submits that the allegations so levelled in the complaint are nothing but bundle of lies which have got no nexus with reality as the applicants had no point of time committed the said offences. Further submission is that in the complaint lodged by the opposite party no. 2 who happens to be the uncle of the victim, it is alleged that an incident took place on 21.03.2023, however, in the statement under Section 200 Cr.P.C., the incident is stated to be dated 31.03.2023. It is further contended that there are vast contradictions in the complaint vis-a-vis the statement of the complainant under Section 200 Cr.P.C. inasmuch as the allegation is that the applicant no. 1 had touched the chest of the victim while attempting to outrage the modesty of the victim and hue and cry so raised by the victim, the complainant and the mother of the victim came there, the applicant no. 1 while pointing the country-made pistol tried to run away while making loud noises and on listening the same, the applicant nos. 2 to 6 came and they with the help of fist, legs, cudgel and wooden-stick started beating, pursuant whereto injuries were sustained, however, in the statement under Section 200 Cr.P.C., it has been deposed that with respect to a boundary of an agricultural land, a dispute was between the applicant-faction and opposite party no. 2 faction and on 31.03.2023 at 7.00 in the morning, the applicant no.1 entered into the house and started fighting with the mother of the victim and thereafter the accused nos. 2 to 6 also administered beating. Contention is that the major contradictions and variations in the statement of the opposite party no. 2 vis-a-vis the complaint lodged by him completely negates the occurrence of the incident and once no statement of committing of the offence under Section 354 IPC was made against the applicant no. 1 thus the theory so sought to be propounded cannot be said to believable and hence, the summoning of the applicant was totally uncalled for.
7. Submission is that the said material contradiction itself erodes the prosecution theory and thus, the proceedings cannot be allowed to be continued. It is also submitted that though the mother of the victim in her statement under Section 202 Cr.P.C. had supported the prosecution theory but the same would be of no relevance, particularly, when there happens to be major and material contradictions in the statement of the author of the complaint i.e. the complainant.
8. Apart from the same, it is also contended that in order to attract the provisions under Section 354 of the IPC, there has to be an intention of committing assault or criminal force to a woman with the intent to outrage the modesty, however, the same is lacking in the present case. He seeks to rely upon the decision of the High Court of Bombay in Criminal Application No. 1269 of 2017; Sudhir Vitthal Medhekar v. State of Maharashtra and others dated 19.08.2022.
9. It is also contended that in order to invoke the provisions of Section 8 of the POCSO Act, its application is to be first determined and here on the basis of a transfer certificate, the victim has been shown to be a minor and the court below before summoning the applicants has not been considered the said aspect of the matter that a transfer certificate does not have legal sanctity in order to determine the juvenility under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Reliance has been placed upon the decision of the Hon'ble Apex Court in P. Yuvaprakash v. State Rep. by Inspector of Police reported in 2023 INSC 676.
10. Additionally, it has also argued that the summoning order has not been passed as per the mandate of the law, as the same has been passed in a matter of routine without adverting to the core and fundamental issues.
11. Shri Sandeep Kumar Gupta who appears for opposite party no. 2 while countering the submission so sought to be made by the learned counsel for the applicants submits that the statement of the victim which is vital and important, itself alleges criminality upon the applicants. So much so, the mother of the victim as well as the victim have supported the prosecution theory and there happens to be an injury report also on record, wherein six injuries were sustained by the victim. He thus submits that at the stage of summoning, no case is made out to interfere.
12. Shri S.P. Singh, learned State Law Officer has supported the arguments of counsel for the opposite party no. 2.
13. I have heard learned counsel for the parties and gone through the records carefully.
14. In the present proceedings at the instance of the applicants, challenge has been raised to the summoning order dated 01.10.2024 summoning the applicant no. 1 under Sections 147, 149, 323, 354, 504, 506 IPC and Section 8 of POSCO Act and with respect to applicant nos. 2 to 6, under Sections 147, 149, 323, 504, 506 IPC. There are certain criterias and para-meters which are used as a tool to determine as to whether the summoning orders suffers from infirmity or not. Amongst others, one of the same would be the allegations contained in the complaint vis-a-vis the statements under Section 200 and 202 Cr.P.C. In case, there is no contradiction or variation in the statements under Section 200 and 202 Cr.P.C. vis-a-vis the allegations contained in the complaint then ordinarily the Court would be reluctant in interfering with the summoning order. However, exceptions are there but in order to carve out a case under exceptional category, the accused must have an iron caste case i.e. there are material contradictions which goes to the root of the matter.
15. Applying the principles of law in the present facts and circumstances, it is apparent that a complaint was lodged by the opposite party no. 2 who happens to be the uncle of the victim on 27.03.2023 with an allegation that on 21.03.2023, the applicant no. 1 barged into the house of the opposite party no.2 and thereafter committed offences under Section 354 IPC while touching the left side of the chest and biting the same and attempting to commit bad act and hue and cry raised by the victim, the opposite party no. 2 and the mother of the victim came there and the applicant no. 1 while pointing the country-made pistol while administering threat ran away thereafter rest of the applicants, applicant nos. 2 to 6 arrived and they administered beating with cudgel, wooden-sticks, iron rod, legs and fist. Though in the statements of the opposite party no. 2/ complainant under Section 200 of the Cr.P.C., the date of the incident has been shown to be 31.03.2023 but in the complaint, the same is 21.03.2023 and further the story as narrated in the complaint was that first offences under Section 354 IPC was committed with the niece of the opposite party no. 2 and then applicant nos. 2 to 6 came to the house of the opposite party no. 2 and committed offences of beating and hurled of abuses etc., however, there had been no allegation of commission of the offences under Section 354 IPC.
16. Now a question arises as to whether the contradiction in the statement of the complainant under Section 200 Cr.P.C. vis-a-vis the allegations in the complaint would be the sole basis of throttling investigation at this stage or not. The answer would be obviously 'no' for the simple reason that the statement of the victim under Section 202 Cr.P.C. is intact as in her statement under Section 202 Cr.P.C., she has deposed that the applicant no. 1 had committed the offence under Section 354 IPC while biting the left side of her chest.
17. On top of it, the statement of the mother of the victim which is inconformity and consonance of the statement with the allegation of the complainant.
18. This Court at the stage of summoning is not required to delve into the merits of the matter, however, what would be relevant at the stage of summoning, is the statements of the victim and once the victim herself alleges and deposes that offences have been committed under Section 354 IPC, the investigation cannot be throttled. Apart from the same, even the medical report also supports the occurrence of the incident as the medical report dated 22.03.2023 itself shows that as many as six injuries which are as under:
"1. Cts. 4cmx3cm on Lt side 4cm above Lt ear
2. Traumatic swelling 6cmx 3cm upper point of Lt scapula reddish in color.
3. Abrasion 2cm x 0.8 cm on Rt side chest, 8 Cm below calicle
4. Mul. Ab. Contice of different size in area 5cmx3cm of Lt side chest.
5. Contusion 12cmx3cm lat aspect of Lt thigh
6. Traumatic swelling 5cmx2cm aut. aspect of Rt lower leg."
19. Though at the stage, learned counsel for the applicants has argued that the injury of biting on the left side of the chest has not been noticed in the medical report, thus, the theory of commission of the offences under Section 354 IPC would whittle down is concerned, the said issue at the present stage is not required to be gone into as the same may be a defence consideration whereof may arise at the time when a decision is to be taken as to whether the accused is to be acquitted or convicted. Insofar as the submission of the learned counsel for the applicants that Section 354 IPC does not attract in the present facts and circumstances of the case is concerned, the same is completely out of context, particularly, wherein the applicant no. 1 has been summoned under Section 354 IPC as the allegation against him is of assault while using criminal forces to a women with intent to outraging the modesty. There is no quarrel to the proposition of law laid down in Sudhir Vitthal Medhekar (supra) but the said judgment on the face of the allegations is not applicable.
20. As regards, the submission raised by the learned counsel for the applicants that the court below had overlooked the crucial aspect that the transfer certificate cannot be made a basis for determination of the age of the victim is concerned in view of the judgement in P. Yuvaprakash (supra) is concerned, there is also no quarrel to the said proposition, however, in the present case, the victim herself has deposed her age as on 01.01.2007 and on the date of the occurrence of the offence on 21.03.2023, she was not major. The question as to whether the victim was minor or a major is question of fact which would be decided when the trial commences when evidences are adduced in that regard.
21. What is required at this stage, when the challenge has been raised to the summoning order is the fact as to whether the case is triable or not once the case on the face of the allegations made in the complaint vis-a-vis the statement of the victim appears to be prima facie triable, then it would be a travesty of justice to throttle the proceedings. Even otherwise, the court below has analyzed the complaint as well as the statements under Sections 200 & 202 Cr.P.C. and thereafter summoned the applicants.
22. In view of the said discussion, no case is made out. Accordingly, the application stands rejected.
23. In the opinion of the Court, once a bail application is preferred then the same shall be considered with most expeditions strictly as per the law of the land without any delay.
Order Date :- 22.5.2025 A. Prajapati