Allahabad High Court
Shivam vs State Of U.P. And 3 Others on 4 September, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:156430
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 26249 of 2025
Shivam
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite Party(s)
Counsel for Applicant(s)
:
Mohit Singh, Rajan Maurya, Ravi Kumar Singh, Sanjeev Kumar
Counsel for Opposite Party(s)
:
G.A., Pooja Singh
Court No. - 75
HON'BLE VIKAS BUDHWAR, J.
1. Heard Sri Mohit Singh, learned counsel for the applicant and Sri Vikash Sharma, learned A.G.A. for the State as well as Ms. Pooja Singh, counsel for the 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. This application under Section 528 BNSS has been filed by the applicant to quash the entire proceedings of Complaint Case No.664/2024, Under Section 376(3) I.P.C. & Section 3/4 (2) POCSO Act, Police Station Chaubiya, District Etwah pending in the Court of Additional Sessions Judge/Special Judge (POCSO Act), Etawah and also to quash the impugned summoning order dated 04.12.2024.
4. The case of the opposite party no. 2 is that a complaint stood lodged on 29.05.2024 by the opposite party no. 2 against the applicant herein alongwith other 3 accused for the offences under Sections 323, 354, 452, 504, 506 r/w Section 3/4 of the POCSO Act with an allegation that the opposite party no. 2 is 14 years and is a student of class-IX and the applicant herein had a one sided love with the opposite party no. 2 and while giving false assurance, he used to outrage the modesty of the opposite party no. 2, victim and a month ago from the date of the lodging of the complaint, when the opposite party no.2 insisted that the applicant should marry her then he outrightly refused and solemnized marriage with somebody else and when the same was protested then the applicant threatened the opposite party no. 2 and directed the opposite party no. 2 not to disclose the said fact nobody otherwise he would spoil the image and the respect of the opposite party no. 2 and due to said fear, she did not disclose the said fact and on 19/20.05.2024 at about 1:00 PM, the applicant herein alongwith 4-5 persons barged into the house and with the intention to outrage the modesty of opposite party no. 2 caught hold of the hand and tried to pull and when the opposite party no. 2 did not stand then the applicant alongwith the other persons assaulted her and tore her clothes while molesting her. On hue and cry so raised, the mother of the victim and uncle came there and saw the applicant and the other co-accused, they started running and the applicant herein pushed the mother of the opposite party no. 2, pursuant whereto she fell down and on the said noise, other persons came then the applicant uttered that the opposite party no. 2 has been saved but she has to face the music. It is also alleged that the applicant is resourceful and quite powerful that is why nobody dares to lodge any report against him and on 20.05.2024, a complaint was also sent and the opposite party no. 2 was medically examined.
5. Post recording of the statements of the opposite party no. 2 under Section 202 Cr.P.C. followed by Puppi under Section 202 Cr.P.C. and Sarwar Singh, the applicant came to be summoned on 04.12.2024 under Section 376 IPC read with Section 3/4 (2) of the POCSO Act by the Court of Additional Sessions Judge/Special Judge (POCSO Act), Etawah in Complaint Case No.664/2024.
6. Questioning the said order, the applicant has been filed the present application.
7. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment as the entire allegations so contained in the complaint are not only false, incorrect but are bundle of lies. Submission is that in the complaint, it has been alleged that a false assurance was being extended by the applicant for getting the marriage solemnized with the opposite party no. 2, the modesty of the opposite party no. 2 was outraged by the applicant and the applicant refused to solemnize the marriage with the opposite party no. 2 and married somebody else but in the statements under Section 202 Cr.P.C. of Puppi, it has been deposed that the victim who happens to be her daughter had refused to get married with the applicant as they belong to the same village. Submission is that the said contradiction itself shows that the falsity in the case set up by the prosecution. Further submission is that the statements of the victim under Section 200 Cr.P.C. is itself self-contradictory, particularly, on one hand, it has been alleged that the applicant used to outrage the modesty of the victim/ opposite party no. 2 and on false assurance of marriage for the past seven and eight months but the same was further clarified by the victim that it was only molestation and there was no physical relationship with them, however, again it was stated that the applicant and the victim used to live like husband and wife and he used to be physical with the opposite party no. 2 and on 19/20.05.2024, the applicant alongwith other accused with the intention to outrage the modesty had caught hold of the opposite party no. 2 and tore her clothes and committed offence. Submission is that the said statements cannot be made the basis of inflicting any offences under Section 376 (3) IPC read with Section 3/4 (2) of POCSO Act, particularly, when the statements are self-contradictory and the court below before summoning the applicant has not considered the import and the impact of the statements which shows falsity. It has also contended that the victim was medically examined and no abnormally was found with regard to the outraging of modesty except the injuries being contusion and abrasion etc.
8. Contention is that the court below on the basis of the tailor-made statements of the witnesses have summoned the applicant without there being any basis and there happened to be no ingredients so as to invoke the provisions of Section 376 (3) IPC read with Section 3/4 (2) of POCSO Act.
9. Countering the submissions of the learned counsel for the applicant by Sri Vikash Sharma, learned A.G.A. for the State as well as Ms. Pooja Singh, counsel for the opposite party no. 2 has submitted that there are no material contradictions in the statements of witnesses under Sections 200 and 202 Cr.P.C. vis-a-vis the allegations contained in the complaint so as to outrightly overrule the possibility of any offence. Submission is that the case itself becomes triable and merely because the medical examination is silent about the said aspect would not be a ground to forestall the proceedings.
10. I have heard learned counsel for the parties and gone through the records carefully.
11. Apparently, at the instance of the applicant, challenge has been raised to the summoning order, whereby the applicant has been summoned under Section 376 (3) IPC read with Section 3/4 (2) of POCSO Act. There are certain criterias which have been looked into in order to determine whether the summoning order suffers from any infirmity or not amongst others one of the criteria would be the allegations contained in the complaint and the statements of the witnesses under Sections 200 and 202 of the Cr.P.C. In case, there is no material contradictions or variations in the statements under Sections 200 and 202 Cr.P.C. vis-a-vis the complaint then the case becomes triable.
12. Applying the said principles in the facts of the case, it emerges that the complainant who happens to be the victim has lodged complaint against opposite party no. 2 with an allegation that the applicant used to outrage her modesty on the false assurance of the marriage and on 19/20.05.2024, the applicant along with other co-accused in order to outrage the modesty of the victim and barged into the house caught hold of the hand of the opposite party no. 2 and tried to pull/ push the opposite party no. 2 and when the opposite party no. 2 did not move then they assaulted her and tore her clothes. In the statements of the witness, under Section 200 Cr.P.C. of the complainant and under Section 202 Cr.P.C., the allegation of outraging of the modesty, the allegation of entering into physical relationship by the applicant with the opposite party no. 2 is there and the allegation is also to the extent on 19/20.05.2024 at 1.00 PM, the applicant alongwith other co-accused barged into the house and attempted to outrage the modesty. The statements under Section 202 Cr.P.C. also talks about the incident dated 19/20.05.2024 and also outraging the modesty of the opposite party no. 2 by the applicant. Though to a certain extent, the counsel for the applicant may be right that in the statements under Section 200 Cr.P.C. on one hand, it has been alleged that the opposite party no. 2 used to outrage the modesty for the past 7-8 months and at some places, it has been alleged that opposite party no. 2 used to outrage the modesty, however, the same was shown to be meant as molestation and not physical relationship but what would be relevant at the stage of summoning is the fact that the aforesaid circumstances do create a situation whereby the case becomes triable. As a matter of fact, the Court at this stage is not required to adjudge the merits of the allegations as what is to be seen at this stage, prima facie, there is something in the complaint which needs to be proceeded with in a trial. So far as the argument of the learned counsel for the applicant that since nothing was found regarding outraging of the modesty in the medical report of the opposite party no. 2, thus, the entire prosecution theory is to fail, is concerned, is not convincible, particularly, the same would have its own effect and impact when the trial commences when decision is to be taken whether the accused is to be convicted or acquitted. It would not be appropriate for this Court at this stage to pre-suppose a fact which is to be trashed out in the trial. Moreover, the inconsistency in the stand taken by the complainant that her modesty was being outraged on the false assurance that she was she would be married and on the other hand as per the statements under Section 202 Cr.P.C. of the mother of the opposite party no. 2, Puppi, the opposite party no. 2 herself has refused to get married with the opposite party no. 2 as they belong to same village, the said contradiction cannot be said to be such a relevance so as to completely overrule of the possibility of the commission of the offence.
13. Nonetheless what would be relevant, would be the provisions contained under Section 29 of the POCSO Act, 2012, where there is a presumption as to certain offences, according to which, a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this 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 pre-supposes holding of a trial.
14. Even otherwise, a note of caution was flagged by the Honourable Apex Court in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 that the Courts are not to interfere in a routine manner and to scuttle the proceedings until and unless there are exceptional categories and the paragraph no. 23 culled out the following propositions of law which is enumerated hereinunder:-
"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
15. Cumulatively analyzing the case from the four corners of law, this Court does not find the present case to come within the exceptional category so as to invoke inherent jurisdiction. Thus, interference is declined, accordingly, the application stands disposed of granting liberty to the applicant to contest the matter and to raise all legal and factual issues or grounds which are legally permissible under law and this Court has no reason to disbelieve then the same shall be considered in correct perspective.
(Vikas Budhwar,J.) September 4, 2025 A. Prajapati