Neeraj Saxena And Another vs State Of U.P. And 3 Others on 2 May, 2025

Allahabad High Court

Neeraj Saxena And Another vs State Of U.P. And 3 Others on 2 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:69736
 
Court No. - 73
 
Case :- APPLICATION U/S 528 BNSS No. - 5268 of 2025
 
Applicant :- Neeraj Saxena And Another
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Ashish Kumar
 
Counsel for Opposite Party :- G.A.,Shivam Shukla,Vinod Kumar
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Ashish Kumar, learned counsel for the applicants, Sri Moti Lal, learned A.G.A. for the State and Sri Shivam Shukla, learned counsel for the complaint/opposite party no.2.

2. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavits and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is being decided at the fresh stage.

3. The case of the applicants is that a complaint was lodged by the opposite party no.2 on 23.11.2024 against the applicants with an allegation that the complainant resides in District Mathura and on 29.6.2024 at 10.30 in the morning the complainant along with her minor daughter aged about 15 years were standing and waiting for a vehicle to proceed to a place by the name of Chhatikara then a vehicle came and stood parked near the place where the complainant and her daughter were standing and the accused asked the complainant about the purpose for waiting and where they wanted to go then the complainant apprised them that she had to go to Chhatikara and the driver along with the two other persons who were sitting in the vehicle further apprised the complainant that there are also going to the place known as Chhatikara and the complainant and her daughter are welcome to sit in the vehicle as they are going to a common place. Allegation is that the applicants-accused one of them who is healthy thereafter pointed countrymade pistol on the head of the complainant and hurled abuses and threatened that the complainant should not utter a single word as no noise will be tolerated on account whereof the daughter of the complainant became perplexed and apprehending that something bad would occur the complainant prayed that she and her daughter be spared, however, the applicants molested the complainant and her daughter and just below the Chauhae bridge, they took the vehicle to a isolated and a lonely place and committed bad act with the complainant. It is also alleged that another vehicle came in which two persons (accused) were sitting and in the backside of the said vehicle, the cattle were also there and the said accused therein committed bad act with the complainant and her minor daughter and after doing so they left the complainant and her daughter in the agriculture field and when hue and cry was raised by the complainant and her daughter then one Usha Devi and Omwati heard the said cry and desperation and they came to the rescue and thereafter one Kuldepak Singh son of Kishan Singh, Dauji who were property dealers identified the applicants. Accordingly, the complaint was lodged on 23.11.2024.

4. Post recording of statement under Sections 200 and 202 of the Cr.P.C., the applicants have been summoned by the court of Additional Sessions Judge/Special Judge POCSO court Mathura on 10.1.2025 in Complaint Case No.202 of 2024 under Sections 363, 366, 376-D, 506 IPC read with Section 5/6 POCSO Act.

5. Questioning the said order, the applicants have filed the present application.

6. Learned counsel for the applicant has submitted that the summing order cannot be sustained for a single moment. Elaborating the said submission, it is submitted that there are major contradiction and variation in the statements under Section 200, read with section 202 Cr.P.C. vis-a-vis the allegations contained in the complaint. Contention is that in the complaint, the complainant has alleged that on 29.6.2024, at 10.30 in the morning, when they were offered lift by two of the accused, then on gunpoint, molestation was done of the complainant and the victim, who happens to be the minor daughter, but bad act was alleged to have been committed with the complainant and not with the daughter. However, in the statement under Sections 200 & 202 of the Cr.P.C. of the complainant and the victim, it has been first time alleged that bad act was committed by the applicant upon the the complainant and the victim minor daughter. Contention is that the said major inconsistency and variation in the statement vis-a-vis the complaint which completely erodes the prosecution theory.

7. Learned counsel for the applicants submits is that neither the complainant nor the minor daughter of the complainant were subjected to medico legal examination and once there happened to be no medial examination then the adverse inference is to be drawn and there is no evidence against the applicants. It is also submitted that the story so sought to be propounded in the complaint is unbelievable and inconceivable particularly when it is not humanly possible, as it is a matter of common knowledge, that after committing a crime the accused would not stand and wait for the onlookers to identify them.

8. Additionally, it has been argued that straight away the complaint has been lodged without taking recourse to the approaching the police station or S.S.P. and thus the complaint itself may not be maintainable and accordingly there is no question of summoning the applicant. It is also argued that the applicants were not present when the incident took place and even call detail reports have also not been taken into consideration and lastly it has been argued that the entire story is a planted one.

9. Sri Shivam Shukla, learned counsel for the opposite party no.2 submits that the summoning order cannot be faulted in any manner whatsoever particularly when the incident stands corroborated from a bare look as well as the statement under Sections 200 and 202 of the Cr.P.C. He further submits that the court below was only required to see as to whether prima facie offences are made out on the basis of the allegations contained in the complaint vis-a-vis, the statements under Section 200 and 202 of the Cr.P.C. He also submits that the applicants were not present, CDR report was not considered as well as the fact the fact that the complainant and the victim were not subjected to medico legal examination is concerned, the same is a matter of trial.

10. Sri Moti Lal, learned A.G.A. for the State has supported the arguments of the opposite party no.2. He submits that he has nothing to add at set that prima facie offences are made out.

11. I have heard the submissions so made across the bar and perused the material on record carefully.

12. In the present case, the Court is confronted with a challenge being raised at the instance of the applicants to an order of the Additional Sessions Judge/Special Judge (POCSO Court) summoning the applicants under Sections 363, 366, 376D, 506 IPC read with Section 5/6 of the POCSO Act. There are certain parameters which are to be taken into consideration while testing the validity of a summoning order. Amongst others the criteria would inevitably be the allegations contained in the complaint as well as the statements made under Sections 200 and 202 of the Cr.P.C. The court is not required to conduct a mini trial but what is required is recording of a satisfaction that the prima facie the case is triable.

13. Applying the principles of law in the present facts of the case, it will reveal that the complainant, in the complaint has alleged that the complainant’s modesty was outraged while committing bad act by the two applicants-accused, who had offered lift to the complainant and the victim on 29.06.2024, when they were waiting for a vehicle at 10.30 in the morning. Further, in the statement, under Section 200 of the Cr.P.C, the complainant has deposed that bad act was committed by the two applicants accused, who had offered them the lift, upon the complainant and her minor daughter. Furthermore, the statement, under Section 202 of the Cr.P.C. of the victim also alleges commission of the offence of outraging the modesty while committing bad act.

14. Learned counsel for the applicant, though made a feable attempt to suggest that there is a major contradiction in the complaint vis-a-vis the statements under Sections 200 & 202 of the Cr.P.C., thus the entire prosecution theory stands eroded, cannot be accepted as such, particularly at this stage when there are pinpointed allegations against the applicants/accused who had offered lift to the complainant and the victim and committed bad act. The effect and the ramification of said inconsistencies in the statement would be a subject matter of trial as it would not be appropriate for this Court to throttle the investigation particularly when allegations are pinpointed against the applicants-accused.

15. As regards the allegation in the complaint that at a later point of time, a vehicle came in which two other accused being accused were also sitting and they also committed rape, the said prosecution theory has been supported by the witnesses under Section 200 and 202 of the Cr.P.C. Once there are pinpointed allegations levelled against the applicants-accused of commission of bad act, then the issue becomes triable and the investigation cannot be throttled on the basis of certain alleged variations at a stage when the applicants have been summoned.

16. Plainly and simply, this Court while exercising the inherent jurisdiction is only required to determine as to whether there has been any satisfaction accorded by the Court below while summoning the accused. Here the Court finds that the Court below while summoning the applicants have considered the allegations contained in the complaint as well as the statements under Sections 200 and 202 of the Cr.P.C. Once the position being so, it would not be appropriate for the Court to interfere with the summoning order particularly when the case is triable.

17. So far as the issue related to import and the effect of the non-subjection of medico legal examination of the complainant and his daughter is concerned, the same cannot be a ground to throttle the investigation at a stage particularly when there are pinpointed allegations of commission of the offences by the applicants against them and the same may have its effect and ramifications on its own strength when a decision is taken during the trial as to whether it is a case of acquittal of the accused.

18. Nonetheless, the contention raised by the learned counsel for the applicants that the applicants were not present when the incident took place and the call detail records have not been considered which would have been a valid criteria to determine as to whether the applicants are innocent or not or they have been falsely implicated is again a matter of trial as the stage of consideration the said light has not arisen.

19. So far as the argument that it is highly improbable and inconceivable even for a prudent person to even visualize that after commission of the offences, the accused will stand and exhibit a situation whereby invitation would be given to recognize them is concerned the same is an issue which at best can be a matter of defence, however the stage whereof has not arisen till now.

20. As regards the submission that directly without availing the remedy as available under Sections 154 and 156 of the Cr.P.C., the complainant stood lodged is concerned the same cannot be a ground to throttle the investigation particularly when allegations are already there. However, suffice is to say that in the summoning order there happens to be a recital that the complainant had approached the police station and also the Senior Superintendent of Police for lodging of the proceedings but in failing to lodge the same the proceedings under Section 156(3) of the Cr.P.C. was initiated.

21. At this stage, learned counsel for the applicants has submitted that there is nothing on record to suggest that the daughter of the opposite party no.2/complainant is minor.

22. To counter the aforesaid submission, learned counsel for the opposite party no.2 has invited the attention of the Court towards page 27 of the paper book so as to contend that there happens to be a photograph of the daughter of the complainant which shows that she is minor. This Court at this stage is not required to record any finding in this regard as these are the subject matter of trial.

23. There is another facet which also needs to be noted that Section 29 of the Protection of Children from Sexual Offences Act, 2012 itself provides for presumption as to certain offences according to which where a person is prosecuted for committing or abating or attempting to commit any offence under Sections 3, 5, 7 & 9 of the Act, the Special Court shall presume that such person has committed or abated or attempted to commit the offence, as the case may be, unless the contrary is proved. The legislature while employing the word “unless the contrary is proved”, itself clinches the issue as in a given case the issues are matter of trials.

24. Even otherwise at pre trial stage, no factual enquiry can be held as mandated in the case of M/s Neeharika, Infrastructure Pvt. Ltd. vs. State of Maharashtra and others reported in AIR 2021 SC 192 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.”

25. On a pointed query, being made to learned counsel for the applicants, as to whether there was any jurisdictional error committed by the court below, the learned counsel for the applicants could not point out any jurisdictional error committed by the court below.

26. Resultantly, in absence of any jurisdictional infirmity or illegality pointed out by the learned counsel for the applicant/s, no good ground is made to quash the summoning order, as even otherwise, this Court finds that this is not a fit case wherein inherent jurisdiction power under section 482 Cr.P.C. 1973/528 B.N.S.S. be invoked.

27. In view of above, the present application under Section 528 B.N.S.S. stands dismissed.

Order Date :- 2.5.2025/piyush