Allahabad High Court
Dipak Pathak And 5 Others vs State Of U.P. And Another on 5 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:131356 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 3830 of 2025 Applicant :- Dipak Pathak And 5 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohammad Khalid,Yashdeep Rastogi Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard Sri Mohammad Khalid, learned counsel for the applicant and Sri J.P. Gupta, learned AGA for the State.
3. This Court on 07.02.205 had issued notice to the opposite party no. 2-complainant, however, there is an office report dated 06.03.2025 that though the notice has been served upon through heirs but nobody has put in appearance. Treating the service of notice to be sufficient, the Court is proceeding with the matter.
4. The case of the applicants is that on 27.02.2024 proceedings under Section 156 (3) Cr.P.C. stood initiated against the applicants who are six in number with an allegation that the opposite party no. 2 is married to one Kuldeep Saxena and is resident of Gulab Bagh, Buddh Bazar, Kasba and Police Station Bisauli, District Budaun and her husband does private business. Allegation is that the applicant no. 1 happens to be a Sabhasad and is a notorious personality against him several criminal cases have been lodged and pending and he bears enmity and animosity with the opposite party no. 2 and without there being any reason hurls abuses and the applicants while acting as a gang are in the habit of taking liquor. Further allegation is that on 03.02.2024 at about 4:45 in the evening, the applicants here barged into the house of the opposite party no. 2 and hurled abuses while threatening the opposite party no. 2 to leave the house and to go somewhere else and the applicants were armed with cuddle, iron rods and countrymade pistol. On witnessing the same, hue and cry was raised by the opposite party no. 2 then the husband of the opposite party no. 2 and the minor daughter, victim came there then the applicants molested and assaulted the opposite party n o. 2 while disrobing her by pulling the apparon which the opposite party no. 2 was wearing and the applicants no. 1, 4 and 5 gave a blow to the victim and she fell down pursuant whereto her fingers got injured and they started touching the private parts of the victim. After hearing the hue and cry, the son of the opposite party no. 2 Kripal and Yatindra Kumar Saxena and other villagers came there who witnessed the said incident and they could rescue after exerting lots of pressure, the opposite party no. 2 and the victim. Had the villagers not been there then the opposite party no. 2 would have been done to death and the victim’s modesty would have been outraged. Thereafter, the applicant no. 1 who happens to be Sabhasad administered threat that in every eventuality, the opposite party no. 2 and the family members have to leave the house otherwise they would be facing music. A written complaint was made followed by constant persuasion for loding of the first information report by a registered letter to the SSP Budaun and when nothing was done then on 27.02.2024, the proceedings under Section 156 Cr.P.C. came to be lodged. Posting recording of the statement of the complaint under Section 200, victim under Section 202, Kuldeep Saxena, Rajendra Kumar. The applicants came to be summoned under Sections 323, 354, 504, 506 IPC read with Section 7/8 of POCSO Act by the court of Additional Sessions Judge/Special Judge, POCSO Act, Budaun on 03.01.2025.
5. Questioning the summoning order, the present application has been preferred.
6. Learned counsel for the applicants has submitted that the summoning order cannot be sustained for a single moment. Elaborating the said submission, it is being submitted that that first of all the allegation is regarding touching of the private parts, molestation and injuries so extended to the victim but there is no medical report since the victim as well as the opposite party no. 2 who claims to have been subjected to offence were not put to medical examination. Argument is that had medical examination of the opposite party no. 2 as well as the victim been done then the truth would have surfaced and in absence of subjection to medical examination adverse inference is to be drawn and the entire prosecution theory stands eroded from the very substantrum. Further submission is that the applicants happen to be a Sabhasad and on account of encroachment being made by the opposite party no. 2 and their husband upon the public land, notices came to be issued on 13.02.2024 followed by another notice dated 22.03.2024 for demolition and even a complaint was also lodged which is at page 54 of the paper book dated 20.02.2024 which became a motivating factor for lodging of false and frivolous complaint. Argument is that applicant no. 1 was discharging the official duties and just in order to forestall the same, a novel method has been sought to be deployed for exerting pressure so as to create a situation whereby the notices are withdrawn. It is further submitted that even in the complaint itself in the first paragraph, it has been asserted that it was a matter of routine that the applicants used to hurl abuses but there is nothing on record and even an iota of evidence that any protest was being made particularly when the entire genesis which became a factor for lodging of the complaint is just in order to avoid demolition of unauthorized construction. It is also contended that the statement under Section 200 and 202 have been tailor-made just in order to suit the prosecution case particularly when there is no evidence even worth consideration which could have been attributed to summoning the applicants. It is also submitted that the court below while summoning the applicants has not recorded any, prima facie, satisfaction regarding of application/attraction of the penal sections and as a matter of routine on mere asking the applicants have been summoned. In order to explain criminal history, it is contended that an FIR bearing No. 19 of 2006, under Sections 304, 325, 34 IPC came to be lodged against the applicant no. 1 which resulted in a judgment on 17.01.2025 whereby even the applicant no. 1 was not charge sheeted. Similarly, so far as FIR No. 547 of 2017 is concerned, a final report came to be filed against the applicant no. 1 followed by FIR No. 360 of 2021 under Section 409 in which again a final report came to be submitted against the applicant no. 1. So much so in FIR No. 206 of 2017 under Section 332, 352, 504 506 and 427 IPC a final report came to be submitted in favour of the applicant and lastly FIR No. 82 of 2017 a final report also came to be submitted against the applicant No. 1. As regards, the applicant no. 2, FIR No. 82 of 2017 was lodged, a final report came to be submitted against the applicant no. 2 followed by an FIR No. 206 of 2017 under Section 332, 352, 504, 506 and 427 IPC wherein final report has been submitted against the applicant no. 2 and with regard to applicant no. 5, in FIR No. 19 of 2006 under Section 307, 325, 34 IPC the applicant no. 5 has been acquitted with respect to charge no. 307 and convicted only under Section 325, 323, 34 IPC, appeal whereof is pending before the High Court and with respect to FIR No. 547 of 2017 against the applicant no. 5, final report has been filed followed by FIR No. 360 of 2021 under Section 409, final report has been submitted. Submission is that criminal history also stands explained, thus, the applicants are entitled to relief in this regard.
7. Sri J.P. Gupta, learned AGA, on the other hand, submits that the statements under Section 200 and 202 vis-a-vis the allegations in the complaint do not portray any material contradiction or variation and in view of the said position, the case becomes triable and whatever arguments which have been sought to be raised on the premise that the entire prosecution theory stands upon lodging of the proceedings for the purposes of demolition is concerned, the same is at best a defence.
8. I have heard the submissions so made across the bar and perused the record carefully.
9. Apparently, at the instance of the applicants, challenge has been raised to a summoning order whereby the applicants have been summoned under Sections 323, 354, 504, 506 IPC read with Section 7/8 of the POCSO Act. There are certain broad parameters which have to be adhered to in order to determine as to whether the summoning order suffers from infirmity or not. Amongst others, one of the criteria would inevitably be the allegations contained in the complaint vis-a-vis statements under Section 200 and 202 of the Cr.P.C. In case, there are no material contradictions or variations which go to the root of the matter, the Courts would be reluctant in interfering. Applying the said principles of law in the present fact and circumstances of the case, it emerges that proceedings under Section 156(3) stood lodged by the opposite party no. 2 on 27.02.2024 with an allegation that on 03.02.2024 at 4:45 in the evening when the opposite party no. 2 along with the victim was all alone in the house then the applicants herein barged into the house and hereinafter committed the said act while attempting to disrobe the opposite party no. 2 while molesting and so far as the victim is concerned, the applicants no. 1, 4, 5 gave a blow to the victim pursuant whereto she fell down and her fingers got hurt and thereafter they proceeded to touch the private parts. On the basis of hue and cry so raised the son of the opposite party no. 2, the neighbours being Kripal, Yatindra Kumar Saxena came along with others they got assembled there they witnessed the occurrence and after tremendous efforts, the opposite party no. 2 her husband and the victim were saved from the clutches of the applicants and the applicants herein ran away hurling abuses and threatening. The statements under Sections 200 of the complainant on top of it of the victim under Section 202 followed by the statements of Kuldeep Saxena, Rajendra Kumar under Section 202 prima facie are not in material contradictions or variation with the allegations contained in the complaint. They pin point criminality upon the applicant, thus, at the stage of summoning, this would be sufficient making the case triable in nature. As regards the submissions so made by the learned counsel for the applicants, that the basis for lodging of the criminal proceedings is the discharge of the official duty by the applicant no. 1 while holding the office of a Sabhasad for removing the illegal constructions followed by the complaint and the notices issued on several occasions is concerned, they might be one of the factors but at best they are the defences consideration whereof would be necessitated if raised when the trial commences particularly when a decision is to be taken as to whether the accused are to be acquitted or convicted. The defences at the stage of summoning is not required to be gone into. As regards the other submission of the learned counsel for the applicants that neither the victim nor the opposite party was subjected to medical examination, thus, the prosecution theory would fall. In the opinion of the Court, this Court is not required to delve into at this stage particularly when effect, impact and ramification of non-subjection to medical examination is required to be considered at a stage when the trial commences when a decision is to be taken whether it is a case of acquittal or conviction. Though it might be a case of adverse inference but the Court at the stage of summoning is not required to delve into.
10. The extent of judicial intervention in the matter of summoning, came up for consideration before the Hon’ble Apex Court when there were subject matter of challenge in the proceedings under Section 482 Cr.P.C./528 BNSS wherein, the Hon’ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 had mandated that the Court should be reluctant in interfering until and unless there are glaring circumstances and it is a case of malicious prosecution. However, the Court finds that the present case does not fall within the exceptional category.
11. Cumulatively analysing the case from four corners of law, this Court does not find the present case to be a good ground to interfere, the application stands disposed of leaving it open for the applicants to take all legal and factual grounds which are permissible and advisable under law before the court below while contesting the trial and this Court has no reasons to disbelieve that the same shall be considered with correct perspective.
12. The documents furnished by Sri J.P. Gupta, learned AGA is taken on record and marked as Appendix ‘A’.
Order Date :- 5.8.2025
Rajesh