Quashed

Waseem @ Chhotu and 3 Others v. State of U.P. Thru. Secy. Home Civil Secrt. Lko. and 3 Others

Allahabad HC4 Mar 2024/2032/2024

Case brief

AI extract

What is this about?

An applicant under Section 482 Cr.P.C. sought quashing of a summoning order in a rape and POCSO case. The court set aside the High Court of Judicature at Allahabad, Lucknow Bench, observed that the lower court erred by not directing FIR registration for serious allegations, and remanded the matter for a fresh order.

What did the court decide?

The impugned order dated 09.11.2023 quashing the FIR and summoning the petitioner was set aside. The matter was remanded to the trial court to pass a fresh order within 15 days.

Waseem @ Chhotu and 3 Others Vs State of… — Child Sexual Offences (POCSO) | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:19622

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 2032 of 2024

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Applicant :- Waseem @ Chhotu And 3 Others Opposite Party :- State Of U.P. Thru. Secy. Home Civil Secrt. Lko. And 3 Others

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Counsel for Applicant :- Narendra Gupta,Mohammad Salim Khan

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard learned counsel for the petitioners and Sri Aniruddh Kumar Singh, learned AGA-I for the State.

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In view of the proposed order, notice to opposite party no.2 is dispensed with.

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By means of this petition filed under Section 482 Cr.P.C., the petitioners have prayed the following main reliefs:-

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"Wherefore it is most respectfully prayed that this Hon'ble Court may graciously be pleased to quash/set-aside the entire criminal proceeding of Criminal Misc. Case No. 38/2023; Sattar Versus Waseem @ Chhotu and others, under section 376, 506 I.P.C. and section 3/4 POCSO Act Police Station Mishrikh, District Sitapur, pending before Special Judge (POCSO Act)/ Additional Session Judge, Court No. 14 Sitapur as well as summoning order dated 9.11.2023 passed by Special Judge (POCSO Act)/ Additional Session Judge, Court No.14 Sitapur in Criminal Misc. Case No.38/2023; Sattar Versus Waseem @Chhotu and others, relating to Police Station Mishrikh, District Sitapur, by means of which the petitioner no.1 has been summoned to face the trial under section 376, 506 I.P.C. and section 3/4 POCSO Act, contained as Annexure No.1 to this petition."

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Learned counsel for the petitioners has stated that on the basis of false and misconceived application filed under Section 156 (3) Cr.P.C., the learned trial court concerned summoned the petitioners under Sections 376 & 506 IPC read with Section 3/4 POCSO Act vide impugned order dated 09.11.2023. He has further submitted that though for the incident in question, the complainant had earlier approached the police and on such complaint, preliminary inquiry was conducted by the police and vide order dated 13.06.2023, such preliminary inquiry was

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concluded wherein it has been indicated that the allegations so levelled against the petitioners are false and misconceived and the complaint has been filed so as to implicate the petitioners falsely. He has further submitted that if the allegations are relating to Sections 376 IPC and 3/4 POCSO Act, on those allegations, the application under Section 156 (3) Cr.P.C. may not be treated as complaint but the appropriate recourse would be to lodge the FIR and make investigation, therefore, the impugned order dated 09.11.2023 is misconceived and liable to be set aside.

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Learned AGA has submitted that though there is no statutory bar to treat the application under Section 156 (3) Cr.P.C as complaint on the aforesaid allegations but considering the allegation so levelled by the complainant/ informant, instead of treating the case as complaint case, direction for lodging the FIR should have been issued so that the allegation could be investigated properly by the police concerned. Sri Aniruddh Kumar Singh has referred Section 19 (1) of the POCSO Act, 2012 wherein it has been indicated that if the allegations are relating to the offence of POCSO Act, the FIR should have been lodged and if the FIR is not lodged, the erring police officer may be punished. He has also referred Section 154 Cr.P.C. wherein it has been categorically mandated that if there are allegations relating to Section 376 IPC etc., the case should be registered by lodging FIR and proper investigation should be conducted.

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Having heard learned counsel for the parties and having perused the material available on record, when the complainant has levelled specific allegations relating to Sections 376 IPC and 3/4 POCSO Act and he was having some corroborative material/ evidence to that effect e.g. the clothes of the prosecutrix showing that she was subjected to rape, at least the FIR should have been lodged in view of Section 154 Cr.P.C. as well as Section 19 (1) of POCSO Act for the reason that the prosecutrix was 13 years of age at the time of alleged incident. Ignoring the aforesaid aspect, the learned court concerned treated the application of the complainant as complaint and after recording the statements under Sections 200 & 202 Cr.P.C. issued summoning order dated 09.11.2023. I am also of the considered opinion that such allegations must have been investigated by the police properly and carefully by lodging the FIR and for those allegations, treating the application of the complainant as complaint case would not be a proper recourse. Therefore, in view of the above, the impugned order dated 09.11.2023 (supra) is hereby quashed/ set aside at the admission stage. The issue is remanded back to the court concerned to pass a fresh order, strictly in accordance with law, with

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expedition, preferably within a period of fifteen days from the date of receipt of certified copy of this order.

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Accordingly, the instant petition is disposed of finally.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 4.3.2024 RBS/-

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Digitally signed by :- RAM BIR SINGH High Court of Judicature at Allahabad, Lucknow Bench

Waseem @ Chhotu and 3 Others v. State of U.P. Thru. Secy. Home Civil Secrt. Lko. and 3 Others

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Waseem @ Chhotu and 3 Others v. State of U.P. Thru. Secy. Home Civil Secrt. Lko. and 3 Others

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