Allowed

Hari Shankar @ Shiv Shankar and Anr. v. State of U.P. and Anr.

Allahabad HC22 Jul 2022/2483/2020

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the court quashed a summoning order issued by Special Judge Sultanpur. The court found the proceedings to be an abuse of process instituted on totally unfounded and false allegations, lacking substantive evidence. TheHigh Court allowed the petition and quashed the impugned order.

What did the court decide?

Impugned summoning order dated 13.02.2020 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Sultanpur is hereby quashed.

Hari Shankar @ Shiv Shankar and Anr. Vs State of… — Writ and Judicial Review | Allahabad HC (2022)

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Court No. - 10

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Case :- APPLICATION U/S 482 No. - 2483 of 2020

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Applicant :- Hari Shankar @ Shiv Shankar And Anr. Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Rakesh Kumar Modanwal,Kripa Shanker Yadav Counsel for Opposite Party :- G.A.,Anup Kumar Mishra

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Hon'ble Dinesh Kumar Singh,J.

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1. Heard learned counsel for the applicants and learned A.G.A. for the State. Despite service of notice on opposite party No.2, no one has put in appearance on behalf of opposite party No.2 to press this petition.

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2. The present application under Section 482 Cr.P.C. has been filed for quashing the impugned summoning order dated 13.02.2020 passed by Special Judge (POCSO Act) /Additional Sessions Judge, Sultanpur in S.T. No. NIL of 2020 (Anjali Vs. Shiv Shankar and others) arising out of F.R. No.114 of 2018, under Sections 376D, 323, 506, 354(A) I.P.C. and Section 3/4 POCOSO Act, P.S. Sangrampur, District Amethi.

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3. Learned counsel for the applicants submits that applicants have been falsely implicated in the present case merely with the intention to deprive the applicants from the Government Service. He further submits that on 09.07.2018, opposite party No.2 as well as her aunt collectively moved an application to the District Magistrate, Amethi and Superintendent of Police Amethi and it was registered as Reference No.20020318007768. He further submits that in the aforesaid complaint it was alleged that on 01.07.2018 at about 07:00 p.m., opposite party No.2 along with her Aunt went to ease themselves in nearby place from their house and the applicants were already sitting their with the intention to chase them and applicant No.2 caught hold the opposite party No.2 and applicant No.1 caught hold aunt of opposite party No.2, thereafter, both the applicants tore the clothes of opposite party No.2 and her aunt and while pointing the gun, life threat was given and they also attempted to rape them. Thereafter, opposite party No.2 and her aunt raised alarm, as a result, Surendra S/o Ram Aasre reached on the spot, who was having Favda (Spade), then opposite party No.2 and her sister (earlier called aunt) started fighting with the Surendra and when the applicants failed to rape them then they started beating them with the kicks and

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punches and danda. Thereafter, all the 3 persons assaulted opposite party No.2 and her sister (earlier said as aunt) and it is also alleged that due to assault of Fawda, some injury was received to her sister (earlier said as aunt) and they also received injuries.

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4. Learned counsel for the applicants further submits that opposite party No.2 again moved an application under Section 156(3) Cr.P.C. for lodging the F.I.R. against the accused persons on 13.08.2018 with the allegation that on 22.07.2018 at 08:00 p.m., opposite party No.2 and her aunt went to ease themselves and the applicants were already sitting there and when opposite party No.2 and her aunt reached there, they tried to rape opposite party No.2, as a result, she received injuries (an identical story was again narrated in the aforesaid application). Thereafter, under the order of court below, F.I.R. No.227 of 2018, under Sections 376-D, 354(A), 325, 506 I.P.C. 3/4 POCSO Act, P.S. Sangramgarh, District Amethi on 14.09.2018 was registered against the applicants.

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5. Learned counsel for the applicants further submits that thorough investigation was conducted by the Investigating Officer and the statement of opposite party No.2 as well as her aunt was also recorded by him. He further submits that as per the prosecution case as alleged in the F.I.R., the aunt of the opposite party No.2 received cut wound due to assault of Fawda, but no injury report was provided by her to the Investigating Officer. He further submits that in her statement under Section 161 Cr.P.C., specific question was asked by the Investigating Officer to the eye witness Ankita that in the F.I.R., it is alleged that she received injuries due to assault of Fawda and whether any medical examination was conducted or not then she replied that neither she received injuries nor anyone has caused such injuries, therefore, she was not medically examined. He further submits that in her statement specific question No.13 was also asked by the Investigating Officer then aunt of the opposite party No.2 categorically stated that due to some land dispute, the prosecution was initiated against the applicant with the allegation of rape only with the intention to keep them behind the bars.

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6. Learned counsel for the applicants further submits that statement of opposite party No.2 was also recorded and her cloths were also demanded

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by the Investigating Officer but she refused to provide the same to him. He also submits that after detailed investigation, the Investigating Officer observed that applicant No.2 was falsely implicated due to some land dispute and Investigating Officer also provided for proceedings under Section 182 Cr.P.C. against opposite party No.2 by filing the final report, then protest petition was filed by opposite party No.2 and without considering the material/evidence collected by the Investigating Officer and the statement of opposite party No.2 as well as her aunt, the court below issued the summoning order on 13.02.2020 with the observation that aunt of opposite party No.2 received injuries.

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7. Learned counsel for the applicants further submits that injury report of aunt of opposite party No.2 is not available on the record. He also submits that in case, the court below found that investigation was not properly done, then it was obligatory on the part of the court below to direct the Investigating Agency for further investigation, but in place of directing them, the applicants have been summoned by registering the protest petition as a complaint case, therefore, kind indulgence of this Court is necessary.

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8. Learned A.G.A. opposes the prayer of applicants and submits that there is no illegality in the order passed by the Special Judge (POCSO Act)/Additional Sessions Judge, Sultanpur.

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9. Considering the arguments of learned counsel for the applicants as well as learned A.G.A. and going through the order passed by the court below, it is found that learned court below has observed that aunt of opposite party No.2 received injuries, but this was not considered by the Investigating Officer, as eye witness Ankita specifically stated in her statement that no such incident was taken place and learned counsel for the applicants also relied on the statement of Aunt of opposite party No.2 that she has not received injury, therefore, this Court finds that prosecution has been lodged and criminal court's process has been set in motion on totally unfounded and false allegation without there being any evidence available to support prosecution case.

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10. This Court is of the opinion that impugned proceedings are nothing but

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an abuse of process of the Court which has been instituted out of spite and ill will. In view thereof, to secure the ends of justice this Court feels that impugned proceedings ought to be quashed.

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11. The petition is allowed.

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12. Proceedings of impugned summoning order dated 13.02.2020 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Sultanpur in S.T. No. NIL of 2020 (Anjali Vs. Shiv Shankar and others) arising out of F.R. No.114 of 2018, under Sections 376D, 323, 506, 354(A) I.P.C. and Section 3/4 POCOSO Act, P.S. Sangrampur, District Amethi are hereby quashed.

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( Dinesh Kumar Singh, J. )

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Order Date :- 22.7.2022 prateek

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Digitally signed by PRATEEK ARORA Date: 2022.07.22 18:53:42 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Hari Shankar @ Shiv Shankar and Anr. v. State of U.P. and Anr.

Case brief

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Hari Shankar @ Shiv Shankar and Anr. v. State of U.P. and Anr.

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