Nasruddin And Another vs State Of U.P. And 3 Others on 17 July, 2025

Allahabad High Court

Nasruddin And Another vs State Of U.P. And 3 Others on 17 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:116684
 
Court No. - 75
 
Case :- APPLICATION U/S 528 BNSS No. - 41069 of 2024
 
Applicant :- Nasruddin And Another
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Yakub Ali
 
Counsel for Opposite Party :- G.A.,Pawan Kumar
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Yakub Ali, learned counsel for the applicants and Sri S.P. Singh, learned State Law Officer for the State.

2. This is an application filed U/s 528 BNSS for quashing the order dated 16.08.2024 passed by Special Judge, Ananya Court (POCSO Act) Maharajganj on Misc. Application No. 283 of 2023 (Madhuri vs. Nasruddin and Ors) U/s 354, 504, 506 IPC and Section 7/8 of POCSO Act.

3. The case of the applicants is that the opposite party no.2 initiated a proceeding U/s 156 (3) Cr.P.C. against the applicants U/s 323, 354B, 376/ 511, 504, 506 IPC read with Section 7/8 POCSO Act with an allegations that the complainant/ opposite party no2. is the resident of District Maharajganj and on 30.10.2022 at 11:00 in the night when the opposite party no.2 was alone in the house along with her children then the applicant herein had barged into the house of opposite party no.2 while knocking the door and on hearing the knocking of the door, the opposite party no2 and her minor child/ victim who is 13 years old awake and the victim rushed towards the door to open it and found that the applicants were standing and on seeing the victim, the applicants gave a blow and attempted to commit offence while extending indecent behaviou in gesture while pressing the breast of the victim and they tour the cloths which the victim was wearing and through the victim on the floor and attempted to outrage the modesty and when the daughter of opposite party no.2/ victim make hue and cry then the opposite party no.2 ran to rescue the victim then the applicants herein took the knife, threatened and also hurled abuses while uttering that if the said incident is reported to anybody then they will be done to death. As per the complaint on account of hue and cry being raised, the villagers/ neighbours who were living therein came there and the incident was reported to the police but when the first information report was not being lodged then the complaint was lodged on 15.11.2022. Post filing of lodging of the complaint, statement of opposite party no.2- mother of the victim namely Madhuri Sharma U/s 200 Cr.P.C. followed by the statement of Manju Sharma, Priyanka Sharma and the victim Anjali Sharma U/s 202 Cr.P.C. was recorded and on 09.11.2023 an order came to be passed by the Special Judge (POCSO Court), Maharajganj by rejecting the complaint U/s 203 Cr.P.C. Questioning the said order, the opposite party no.2 preferred an application U/s 482 Cr.P.C. No. 3955 of 2024 (Madhuri vs. State of U.P.) in which on 05.07.2024 the following order was passed:

“1. Heard Sri Pawan Kumar, learned counsel for applicant and perused the record.

2. Applicant before this Court is complainant, who has filed an application under Section 156(3) Cr.P.C. which was considered as a complaint case.

3. Learned counsel for applicant submits that statement of Complainant and witnesses including victim were recorded, however, Trial Court concerned vide order dated 09.11.2023 has rejected complaint by an order passed under Section 203 Cr.P.C. He refers relevant part of order as under:

“6. ??????? ?????? ???? ?? ???????? ?? ????? ????, ??? ??? ??????? ?? ??????? ?? ?? ?????? ?? ??? ?? ?? ????? ??? ???? ?????? ?? ???? 156 (3) ???? ????????? ?????? ?? ??? ????????? ???? ???????? ???? ??? ??? ???????? ???? ?? ?? 30.10.2022 ?? 11 ??? ??? ?? ???? ????? ?????? ???????? ?????? ???? ???? ?? ????? ??? ???? ??? ???? ????? ??? ??? ?? ???????? ?? ?????? ???? ?? ??? ???? ?? ??????? ??? ???? ?????? ???? ??? ????????? ???? ???????? ???? ????? 22.12.2022 ?? ???? ?????? ?????? ?? ??? ??? ??????? ???? ????

7. ????? ???? ?????? ???? ???? ???????? ? ??????. ?? ???? ????? ??? ???? ???? ???? ????? ???????? ?? ??????? ?? ?????? ?? ?????? ?? ??? ?? ?? ???????? ??????????? ??? ?? ?? ??? ??? ?? ????? ?? ??????? ?? ?? ?? ?? ????? ?? ?? ?? ?? ??? ?? ??? ?????? ???? ??? ????? ?? ??????? ???????? ?? ??????? ??? ???????? ?? ?????? ??? ????????? ??? ????? ??? ?????? ?? ?? ??????? ???? ???? 12 ???? ???? ????? ?? ???? ????????? ???? ??? 13 ???? ???? ??? ??? ????? ?? ??????? ???????? ?? ??????? ??? ??????? ????????? ??? ???? ????? ???????? ?? ????? ?? ?????? ?? ?????? ??? ?? ?? “????????? ???? ??????? ?? ??????? ??? ???? ??? ???? ???????? ?? ?????? ?? ???? ??? ?? ?????? ????? ?? ???? ??? ??? ???? ??? ??? ?????? ??????? ?? ????? ????? ????? ????? ??? ??? ? ????? ????? ??? ???, ????? ?????? ??? ??? ??? ??????? ?? ??????? ??? ? 0 ??0-275/2022 ????-323,504,506 ????????? ??????? ??? ?????? ?? ???? ?? ????-325,308 ????????? ?? ????????? ?? ??????? ??????? ??? ??? ???????? ?? ?????? ??? ???? ???? ???? ????? ?? ??? ?????? ???????? ?? ????????? ???? ???? ??? ??? ?? ??????? ??? ??? ?????? ??????? ???? ????”

4. Referring above referred part of impugned order, learned counsel submits that essentially the reason to reject complaint was that statements of Complainant and witnesses do not identify the place of occurrence as well as there was a minor difference with regard to age of victim in the statements. Trial Court has also taken note that there was a prior enmity between parties.

5. Learned counsel further refers statements of Complainant and victim that they have categorically stated that on the date of occurrence they were sleeping in their house, therefore, there is no contradiction on the issue of place of occurrence. He further submits that so far as age of victim is concerned, a minor difference in age being 12 or 13 years does not have any adverse bearing since the Trial Court has to be considered only that whether victim was minor or not.

6. I have carefully perused statements of Complainant and witnesses, which are reproduced hereinafter:

Statement of Complainant under Section 200 Cr.P.C.

“?????? ??? ?????? ????? ???? ??? ?? ???? 40 ??? ????? ????? ???? ????? ???? ?? ??????, ???? ?????? ???? ????????? ?? ???? ???? ???? ?? ???? ??? ?? ??? ??? ???? ??? 11:00 ??? ??? ?? ?? ??? ???? ?????? ?? ??? ???? ?? ??? ?? ?? ??? ??, ??? ??? ??? ????????? ?? ???????? ???? ?? ?? ?????? ?????? ???? ?? ???? ?????? ????? ???? 12 ???? ?????? ???? ??? ????????? ?? ???? ?????? ????? ?? ??? ???? ???????? ?? ??? ???? ???? ?? ???? ????? ???? ??? ?? ???? ??? ?????? ???? ?? ??? ??? ???? ?????? ??? ?? ?? ?? ?? ??? ??????? ?? ?? ?????????? ???? ?????? ? ???? ???? ??? ??? ??? ??? ?? ???-??? ?? ??? ???? ???? ???? ?? ???? ?? ????? ???? ?? ????? ??? ???????? ???? ????? ?? ????? ??????? ????????? ?? ???? ?? ????? ????? ????????? ??????? ???? ??, ????? ??? ????????? ???? ????? ?? ???????? ??? ????????? ???? ???? ???”

Statement of PW-1 under Section 202 Cr.P.C.

“?????? ???? ????? ???? 42 ???? ????? ??? ???? ????? ????? ????? ???? ????? ????? ?? ?????? ???? ?????? ???? ????????? ??? ??? ???? ???? ?? ?????? ???? ?????? ??? ??????? ???? ?? ???? ??? ???? ?? ??? ????? ?? ??? ??? ?? 11:00 ??? ?? ????????? ? ???????? ?????? ?? ?? ?? ?? ?????? ????? ?????? ?????? ?? ????? ????? ?? ???? ????? ?? ???? 12 13 ???? ?? ???? ????? ?? ???? ?? ???? ???? ?? ??? ??? ????? ?? ????? ????? ???? ??? ?? ???????? ???? ?? ?????? ??? ???? ????? ?? ???? ?? ?? ???? ?? ??? ?? ??? ???????? ?? ???? ??? ?????? ???? ?? ? ?? ?? ???? ?? ???? ?? ??? ???? ???? ???? ????? ?????????? ???? ?????? ??? ??? ?? ?? ???? ?? ???? ?????? ????? ?? ??????? ?? ???????? ?????? ?? ??? ?? ??? ?????”

Statement of PW-2 under Section 202 Cr.P.C.

“?????? ?? ??? ???? ????? ????? ?????? ????? ???? 50 ???? ???? ???? ????? ????? ???? ????? ????? ?? ?????? ???? ?????? ???? ????????? ??? ??? ???? ???? ?? ?????? ???? ??? ?? ??? ?? ???? ?????? 30 10 22 ??? 11:00 ??? ??? ?? ?? ???? ???? ?? ????????? ? ???????? ?????? ?? ?? ?? ??? ?????? ????? ?? ?????? ?????? ?? ????? ????? ?? ???? ?? ??? ??????? ?? ????? ???? 12-13 ???? ?? ???? ???????? ????? ?? ?????? ????? ?? ??? ???? ??? ??? ????? ???? ?? ??? ??? ??? ???? ???? ?? ???? ????? ???? ??? ?? ???????? ?? ?????? ???? ??? ???? ?? ?? ???? ?? ?? ??? ?? ?? ????? ?? ??? ?? ???? ????? ????? ?? ??? ?????? ?? ???? ????? ?? ???? ???? ??????? ??? ???? ?? ???? ???? ??? ? ?? ?? ???? ?? ??? ?? ?? ???? ???? ???? ??????? ???? ?????? ??? ??? ?? ?? ??? ?? ?? ???? ?? ????? ?????? ????? ?? ??????? ???????? ?????? ?? ??? ?? ??? ????? ????? ?? ???? ???? ??? ???? ?? ??? ???”

Statement of PW-3 under Section 202 Cr.P.C.

“?????? ?? ??? ???????? ????? ?????? ???? ????? ???? 19 ???? ???? ?????????? ????? ????? ???? ?????? ????? ?? ?????? ???? ?????? ???? ????????? ?? ??? ?????? ???? ???? ?? ?????? ???? ???? ?? ???? ?????? 30 10 22 ??? 11:00 ??? ??? ?? ?? ???? ???? ????? ?? ?? ?????? ?? ??? ?? ?? ??? ??? ??? ???? ????????? ?? ??? ???? ?? ????????? ? ???????? ???? ???? ?? ?? ?? ??? ?????? ??????? ??? ?????? ???? ???? ?? ???? ????? ?? ???? ????? ?? ???? ???? 13 ??? ?? ?? ????? ?? ?????? ???? ?? ???? ???????? ????? ?? ??? ??? ??? ???? ???? ?? ??? ??? ??? ???? ???? ?? ????? ????? ???? ??? ???????? ?? ?????? ?? ???? ???? ?? ???? ?? ??? ????? ?? ?? ??? ?? ???? ???? ?? ??? ???? ????? ?? ???? ?????? ????? ? ?? ?? ???? ?? ??? ??? ???? ???? ???????? ????-???? ???? ?????? ??? ???? ??? ?? ?? ???? ?? ?????? ???? ????? ?? ????? ?? ???????? ?????? ?? ??? ?? ??? ????? ????? ?? ???? ???? ??? ???? ?? ???”

Statement of PW-4 under Section 202 Cr.P.C.

“?????? ?? ??? ????? ????? ?????? ??? ??? ????? ???? 14 ???? ???? ?????????? ????? ????? ???? ????? ????? ?? ????? ???? ?????? ???? ????????? ??? ??? ?????? ???? ???? ?? ???? ?????? 30 10 22 ??? 11:00 ??? ??? ?? ?? ?? ????? ????? ??? ?? ?????? ??? ?? ????????? ? ???????? ?????? ????? ???? ????? ??? ??? ?? ?????? ?? ???? ?????? ???? ???? ?? ?????? ???? ????????? ? ???????? ???? ?? ?? ???? ????? ??? ??? ???? ????? ?? ???? ?? ???? ??? ??? ???? ?????? ??? ?? ?? ????? ????????? ? ???????? ???? ???? ???? ??? ???? ??? ???????? ?? ?????? ???? ?? ????? ?? ???? ?????? ?? ??? ??? ???? ?? ???? ????, ???? ???? ????, ???? ???? ????? ???? ????? ??? ????? ?? ?? ????? ???? ??????? ??? ?? ?? ???? ??? ???? ??? ?? ???? ?????? ?? ??? ????? ?? ??? ?? ??? ?????”

7. In aforesaid circumstances, Court is of the view that there is no ambiguity with regard to place of occurrence as well as minor difference in age of victim mentioned in statements has no much adverse bearing. The statement of victim discloses that offence as alleged was committed. Only on ground of prior enmity all statements cannot be considered to be false. Therefore, the order impugned in this application does not survive in eyes of law.

8. Though in normal circumstances, notice is to be issued to Opposite Parties No. 2 and 3, i.e., accused, however considering that impugned order is perverse since it is contrary to record, therefore, in the interest of justice, inherent power under Section 482 Cr.P.C. is invoked.

9. In the result, application is allowed. Impugned order dated 09.11.2023 passed by special Judge, Maharajganj in Complaint No. 77 of 2022 (Madhuri vs. Nasaruddin and another), is hereby set aside. Matter is remitted back to Court concerned to pass a fresh order in accordance with law.

10. Registrar (Compliance) to take steps. ”

4. Post remand now the applicants have been summoned by the court of Special Judge (Ananya court), POCSO Act, Maharajganj on 16.08.2024 U/s 354, 504, 506 IPC and Section 7/8 of POCSO Act. Questioning the summoning order, the present applicant has been preferred.

5. Learned counsel for the applicants has submitted that no offence whatsoever has been committed by the applicants and the complaint so sought to be lodged by the opposite party no2. is nothing but a bundle of lies, having no nexus with reality. Submissions is that there are material contradiction in the statements U/s 200 & 202 Cr.P.C. vis-a-vis the complaint. It is contended that in the proceeding U/s 156 Cr.P.C. it has been recited that on the hue and cry raised, the villagers who were in the vicinity came. However, in the statement U/s 200 Cr.P.C. a specific deposition has been made by the complainant that none of the villagers/ neighbours came when hue and cry was being raised. Argument is that the said contradiction and variation in the statement U/s 200 Cr.P.C. vis-a-vis the complaint totally erodes being prosecution theory and depicts falsity in the allegations. Further submission is that though the allegations pertains to attempting to outrage the modesty and pressing the breast of the victim was not put to medical examination and had the medical examination of the victim would have been made then the truth have surfaced. He submits that thus adverse inference is to be drawn. Further submission is that even in the complaint the age of the victim has been shown to be 13 years whereas in the statement U/s 200 Cr.P.C., the age has been shown to be 12 years, thus, even in absence of anything conclusive and determinable the POCSO Act could not have been attracted. Further submission is that the impugned complaint is nothing but grossest misuse of process of law being counter blast and retaliation particularly when the mother of the applicant no.1 being Hasirun Nisha had lodged a first information report being no. 0275 of 2022 on 02.11.2022 U/s 323, 504, 506 IPC against Vishal, Brijesh Sharma and Anjani wherein they happens to be the son of opposite party no.2. Contention is that even the injury was sustained by Nasruddin applicant no.1 and that is why the provisions of Section 308 IPC stood included and a charge-sheet came to be submitted U/s 323, 504, 506, 325, 308 IPC. The contention is that just in order to dictate terms and to exert force, the applicants should enter into compromise and false and incorrect story has been cooked up in that regard that to by way of in the present complaint. It is also contended that the summoning order dated 09.11.2023 suffers from total non application of mind as the same probably has been passed on mere asking without recording any satisfaction regarding application of the penal provision. Learned counsel for the applicant has also submitted that there are no independent witnesses and the witnesses who are deposed are relative and not independent.

6. Countering the submissions so made by the counsel for the applicant, Sri S.P. Singh, learned State Law Officer submits that whatever might be from the perusal of the allegations so sought to be made in the complaint vis-a-vis the statement U/s 200 & 202 Cr.P.C., the occurrence of the event and commission of the offences cannot be rightly ruled out. As a matter of fact the victim as well as the statement of the victim U/s 202 Cr.P.C and of the other independent witnesses U/s 202 and 200 Cr.P.C. are intact. He submits that merely because the victim has not been subjected to medical examination would not render the proceedings illegal.

7. I have heard the submissions so made across the bar and perused the record.

8. In the present case at hand, at the instance of the applicant challenge has been raised to a summoning order whereby the applicants have been summoned U/s 354, 504, 506 IPC read with Section 7/8 POCSO Act. There are certain parameters according to which the summoning orde to be tested. Amongst others one of the same inevitably would be the nature of the allegations in the complaint, vis-a-vis in the statement U/s 200 & 202 Cr.P.C. In case there are material contradictions and variation then the position becomes different and further in case, there are no material contradiction then the court would be reluctant in interfering. Applying the said principles in the facts of the case, it is apparent that the complaint stood lodged by the opposite party no.2 against the applicants with an allegation that on 30.10.2022 at 11:00 in the night the applicants barged into the house, knock the door and when the victim open the door then she was subjected to outraging her modesty and her breast was also pressed. The said statement remains intact not only in the deposition of the viction U/s 202 Cr.P.C. but of the other and the complainant U/s 200 Cr.P.C. The contention of the counsel for the applicant that there happens to be a contradiction in the statement U/s 200 Cr.P.C. vis-a-vis the allegations made in the complaint that on hearing on hue and cry, the villagers/ neighbours came but in the statement U/s 200 Cr.P.C. a specific deposition has been made that none of the neighbours or the villagers came there. In the opinion of the Court, the said contradiction cannot be said to be a material contradiction so as to demolish the prosecution theory at a stage where a summoning order is subject matter of challenge

9. In the present case once the statement of the witnesses U/s 200 & 202 Cr.P.C. are in confirmity in the consonence with the allegations in the complaint then obviously the case become triable. As regards non subjection of the victim to medical examination, the same is not a criteria to be adopted to test the summoning order particularly when the same would have its own effect and remification when the trial commences when a decision is to be taken, whether the accused is to be acquitted or convicted. With respect to the submissions of the counsel for the applicants that already a first informatioin report stood lodged by the mother of the applicant regarding injuries sustained by the applicant, the son of opposite party no.2 and the same became a motivating factor for lodging of the complaint just as a counter blast or retaliation is concerned, the same may have its own effect and on its strength and velocity when the trial commences. At best it is a defence consideration whereof is not required to be gone into at this stage. In so far as the age of the applicant is concerned whether it is 12 or 13, a conclusive finding is to be recorded at the time of the trial when evidences are led. This Court at the stage is not required to delve into the same. Even otherwise in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 in paragraph no. 23 culled out the following propositions of law for exercise of jurisdiction U/s 482 Cr.P.C./ section 528 BNSS 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.”

10. Cumulatively analysing the case in the four corners of law this Court finds that the present case does fall within the exceptional category for any interference.

11. Accordingly, the interference is declined.

12. The applications stands disposed of leaving it open to the applicants to take all legal and factual grounds while contesting the trial and the court has no reasons to disbelieve that the same shall be decided strictly in accordance with law.

Order Date :- 17.7.2025

C. MANI

(Vikas Budhwar,J.)