Dismissed

Rajendra Singh and 2 Others v. State of U.P. and Another

Allahabad HC17 May 2023A482/2263/2023

Case brief

AI extract

What is this about?

Single judge of Allahabad High Court dismissed an application under Section 482 Cr.P.C. seeking quashing of POCSO proceedings. The court held that prima facie case exists per Section 164 CrPC statement and Section 29 POCSO presumption, leaving factual disputes for trial.

What did the court decide?

Application to quash summons order, charge sheet and proceedings under POCSO Act refused and dismissed.

Rajendra Singh and 2 Others Vs State of U.P. and Another — Quashing and FIR | Allahabad HC (2023)

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Court No. - 70 Case :- APPLICATION U/S 482 No. - 2263 of 2023 Applicant :- Rajendra Singh And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vijit Saxena,Sheshadri Trivedi Counsel for Opposite Party :- G.A.

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Hon'ble Shekhar Kumar Yadav,J.

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As per office report notices upon opposite party nos.2 & 3 have been served personally. Service is sufficient. No one is present on behalf of the opposite party nos.2 & 3 to press this application.

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Heard Sri Satish Trivedi, learned Senior Counsel assisted by Mr. Sheshadri Trivedi, learned counsel for the applicants, Mr. R. P. Mishra, learned A.G.A. for the State and perused the record.

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This application under Section 482 Cr.P.C. has been filed by the applicants to quash the entire proceeding as well as effect and operation of the impugned summoning order dated 10.01.2022 passed by learned Special Judge (POCSO Act) Lalitpur, in S.S.T. No.19 of 2022 (State of U.P. Vs. Rajendra Agarwal and others) passed in pursuance of charge sheet dated 07.01.2022 arising out of Case Crime No.860 of 2021, under Sections 5/6 of the POCSO Act, 2012 and Section 376DA IPC, P.S. Kotwali, Lalitput, District Lalitpur.

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An FIR dated 12.10.2021 vide Case Crime No. 860 of 2021,under sections 354, 376D, 323, 328, 506, 120B I.P.C. and Sections 5/6 POCSO Act, P.S. Kotwali Lalitpur, District Lalitpur is said to have been lodged by the victim/complainant herself against 25 named persons and 3 unknown persons, total 28 persons including 12 family members and some other persons with the allegations that modesty of victim, who is said to be 17 year old girl, was dislodged repeatedly and continuously by committing rape upon her for a considerable period of time. Subsequent to aforesaid F.I.R. Investigating Officer submitted charge sheet against the applicants under Sections 5/6 of the POCSO Act, 2012 and Section 376DA IPC whereupon the applicants have been summoned to face the trial vide order dated 10.1.2022.

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Learned counsel for the applicants submits that a false and concocted FIR has been lodged against 25 named persons and 3 unknown persons, total 28 persons including 12 family members and some other persons with the allegations that the applicants have molested or in furtherance of the same have assisted in sexual exploitation of the minor victim since last seven years.

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Learned counsel for the applicants submits that any person of general prudence will not approve the story as narrated in the FIR. He has also placed reliance on another FIR lodged by mother of the victim in which final report has been submitted. The medical also does not support the story of the victim being sexually exploited since last seven years. He, therefore, submits that no prosecution could lie against the applicants, in such circumstances. The contention of the learned counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment.

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Learned counsel for the applicants has also produced several orders passed by co-ordinate bench of this Court in respect of other co accused persons wherein interim protection has been granted to them. It is further contended that the applicants have been falsely implicated and the impugned proceedings are nothing but an abuse of process of the Court.

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Per contra, Mr. R.P. Mishra, learned A.G.A. submits that there is no material to show that the applicants have been falsely implicated. Moreover, Section 29 of the POCSO Act draws presumption against the applicants and unless & until the applicants discharge that presumption, the impugned proceedings cannot be quashed. It is further submitted that looking to the statement of the prosecutrix recorded under Section 164 CrPC, there is no ground, at this stage, to quash the proceedings impugned. It is further submitted that the order passed by co-ordiante Bench of this court in respect of other co-accused persons are not binding.

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I have considered the submissions made by the learned counsel for the parties.

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Statement of the prosecutrix, recorded under Section164 CrPC, has been placed on record, which reflects that the offence for which the applicants have been summoned on filing of the charge-sheet is clearly attracted. Section 29 of the POCSO Act reads as under:-

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"29. Where 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."

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From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of M/s Neeharika Infrastructure PVT Ltd. Vs State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 , State of M.P. Vs Awadh Kishore Gupta and others [(2004) 1 SCC 691, and Dr. Monica Kumar and Another Vs State of UP and Others, (2008) 8 SCC 781 . The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C. or 245 Cr.P.C. as the case may be, before the court below and they are free to take all the submissions in the said discharge application before the trial court.

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Considering the legal presumption as provided under Section 29 of the POCSO Act and statement of the prosecutrix given under Section 164 CrPC, this Court finds substance in the submission made by learned AGA. Therefore, the prayer for quashing the proceedings of case as well as charge sheet and summoning order is refused.

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In view thereof, this application is hereby dismissed.

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Order Date :- 17.5.2023/RavindraKSingh

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Digitally signed by :- RAVINDRA KUMAR SINGH High Court of Judicature at Allahabad

Rajendra Singh and 2 Others v. State of U.P. and Another

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Rajendra Singh and 2 Others v. State of U.P. and Another

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