Allahabad High Court
Atul Kumar Alias Kanhaiya vs State Of U.P. And 3 Others on 9 April, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:51373 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 11639 of 2025 Applicant :- Atul Kumar Alias Kanhaiya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sashindra Kumar,Vinay Bhushan Upadhyay Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Vinay Bhushan Upadhyay, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. On the matter being taken up, the learned A.G.A. submits that notice of this application under Section 528 BNSS has already been served upon first informant-opposite party-2 on 07.04.2025. However, in spite of service of notice, neither any counter affidavit has been filed by first informant-opposite party-2 in opposition to this application nor any one has put in appearance on his behalf to oppose this application, even in revised call.
4. Applicant-Atul Kumar @ Kanhaiya, who is a charge sheeted accused and facing trial before Court below, has approached this Court by means of present application under Section 528 BNSS with the following prayer:-
"It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application and quash the entire Proceedings of Session case no. 918/2022 (State Vs. Atul Kumar @ Kanhaiya) arising out of case crime No. 54/2022 U/S 376(2), 506, I.P.C. and section 5/6 Pocso Act, and section 3(2)V, S.C/S.T. Act, Police Station-Sakrauli, District- Etah, as well as charge sheet dated 02.09.2022 cognizance/summoning order dated 11.10.2022 passed by Special Judge POCSO Act, Etah.
It is Further prayed that this Hon'ble Court may graciously be pleased to stay the further Entire Proceedings of Session case no. 918/2022 (State Vs. Atul Kumar @ Kanhaiya) arising out of case crime No. 54/2022 U/S 376(2), 506, I.P.C. and section 5/6 Pocso Act, and section 3(2)V, S.C/S.T. Act, Police Station-Sakrauli, District- Etah, as well as charge sheet dated 02.09.2022 cognizance/summoning order dated 11.10.2022 passed by Special Judge POCSO Act, Etah, during the pendency of the present application before this Hon'ble Court, otherwise the applicants shall suffer irreparable loss and injury.
And/or pass such other and further order which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
5. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused, however, in view of the peculiar facts and circumstances of the case as have emerged on record, the criminal prosecution of applicant cannot be sustained any further. In the submission of the learned counsel for applicant, the impugned proceedings pending against applicant before Court below are not only malicious but also an abuse of the process of Court.
6. According to the learned counsel for applicant, the prosecutrix i.e. first informant-opposite party- had initially lodged an FIR dated 19.06.2022, copy of which is on record at page 25 of the paper book. Perusal of the said FIR will go to show that the same was registered as Case Crime No. 0001 of 2022, under Section 376, 506 IPC and Section 6 POCSO Act, Police Station Kalkaji, District-South East Delhi. However, in the aforesaid FIR, no particulars have been mentioned with regard to the day, date and time of occurrence. It is then contended by the learned counsel for applicant that another FIR dated 06.07.2022 was lodged by the first informant-prosecutrix-opposite party-2 and was registered as Case Crime No. 0054 of 2022, under Sections 376, 506 IPC and Sections 6 POCSO Act, Police Station-Sakrauli, District-Etah. In the aforesaid FIR, the date of occurrences have been mentioned as 27.06.2019 to 19.06.2022. However, accused is the same person as in the earlier FIR referred to above. Drawing a parallel between the bodies of aforementioned FIR, the learned counsel for applicant submits that the prosecution story in both the FIRs is almost the same. On the above premise, he, therefore, submits that the subsequent FIR, which has been lodged by the same person in respect of the same occurrence is not maintainable in view of the law laid down by Apex Court in T.T. Anthony Vs. State of Kerala, (2001) 6 SCC 181. On the above conspectus, he, therefore, submits that present application is liable to be allowed by this Court.
7. Per contra, the learned A.G.A. for State-opposite party-1 initially opposed the present application. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
8. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the matter requires consideration.
9. Notice on behalf of State-opposite party-1 has been accepted by the learned A.G.A.
10. Issue notice to first informant-opposite party-2.
11. All the opposite parties may file their respective counter affidavits within 4 weeks.
12. Applicant will have 2 weeks thereafter to file his rejoinder affidavits.
13. List this application for admission on 21.05.2025.
14. Considering the facts and circumstances of the case and also the submissions urged by the learned counsel for applicant in support of this application as noted herein above, as an interim measure, it is, hereby provided that until further orders of this Court, further proceedings in Sessions Case No. 918 of 2022 (State Vs. Atul Kumar @ Kanhaiya) arising out of Case Crime No. 0054 of 2022, under Sections 376(2), 506 IPC, Sections 5/6 POCSO Act and Section 3(2)(v) SC/ST Act, Police Station-Sakrauli, District-Etah now pending in the Court of Special Judge, Rape and POCSO-Ist, Etah shall remain stayed.
Order Date :- 9.4.2025 Vinay