Application under Section 482 Cr.P.C. seeking quashing of summons in rape and POCSO case dismissed. Court held magistrate applied mind to material making prima facie case out despite applicant's claim of malicious prosecution and contradiction in dates.
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Neutral Citation No. - 2024:AHC:138797
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Sl No.4)
Court No. - 79
Case :- APPLICATION U/S 482 No. - 20463 of 2024
Applicant :- Rajan Alias Rajan Kumar Rajak Opposite Party :- State of U.P. and Another Counsel for Applicant :- Awadhesh Kumar Sharma,Indresh Chandra
Counsel for Opposite Party :- G.A.,Vinod Kumar Tiwari
Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Awadhesh Kumar Sharma, learned counsel for the applicant, Sri Vinod Kumar Tiwari, learned counsel for the opposite party no.2 and Sri Rajeev Kumar Singh, learned A.G.A. for the State.
2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 02.04.2024 in Complaint Case No. 16 of 2023, CNR NO. UPJP010059742023, (Aanchal vs. Rajan and Other) u/S 376 I.P.C. and Section 3/4 of the POCSO Act, P.S.- Badlapur, District- Jaunpur, pending in the court of learned Additional Session Judge/Special Judge, POCSO Act, Ananya, DistrictJaunpur.
3. Learned counsel for the applicant submits that from the averments as made in the complaint itself, no offence whatsoever is made out against the applicant herein, specifically, the offence under the provisions of the POCSO Act. He specifically relied upon the averments as made in para '2' of the complaint wherein it has been averred that the victim was the student of Class XIth in the year, 2016 and her date of birth is 29.07.2005, therefore, learned counsel for the applicant submits that it is an improbable averment made by the complainant in her complaint. In view thereof, learned counsel for the applicant submits that the instant complaint is nothing but a malicious prosecution on the part of the opposite party no.2 due to the enmity as the applicant being the neighbour of the opposite party no.2, therefore, he seeks quashing of the entire proceedings against the applicant herein.
4. Learned counsel for the applicant further submits that learned Magistrate while summoning the applicant herein has not applied his mind to the averments made in the complaint and has mechanically summoned the applicant herein. In support of his submissions he has relied upon judgement of the Apex Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 as well as the judgement of the Apex Court in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 and submits that the Magistrate is not expected to be a silent spectator before summoning the accused, he is required to apply his mind to the material available before him. Since, in the summoning order the learned Magistrate has not applied his mind to the facts of the case, therefore, summoning order is bad, therefore, learned counsel for the applicant seeks quashing of the summoning order against the applicant. It is further submitted by learned counsel for the applicant that the opposite party no.2 had improved her case in her statement under Section 200 Cr.P.C. and there are various contradictions in the application under Section 156(3) Cr.P.C. as well as in the statement under Section 200 Cr.P.C.
5. Per contra, learned counsel for the opposite party no.2 submits that as per the High School's marks-sheet, the date of birth of the victim is 29.07.2005. Therefore, at the time of initial incident, which happened on 16.12.2018, which has been categorically stated by the victim in her statement under Section 200 Cr.P.C. that when the victim was a minor girl, she was raped and a video was prepared by the applicant herein and thereafter under threat perceptions, he continued to rape the victim consistently. Subsequently, he also made a promise to marry the opposite party no.2/victim, thereafter, he has refused to marry the opposite party no.2. Learned counsel for the opposite party no.2 further submits that from the very inception, there was an element of cheating on the part of the applicant herein and initial incident was a forcible rape on the part of the applicant and subsequent incidents were under threat perceptions created by the applicant herein. Therefore, a prima facie case has been made out against the applicant herein. Therefore, no interference is called for, specifically, in view of the judgements of Apex Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haque : (2005) 1 SCC 122 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others : (2021) 19 SCC 401 etc.
6. Learned A.G.A for State also supports the submissions of learned counsel for the opposite party no.2 and submits that once the High School's marksheet is available with regard to
proof of date of birth of the victim, no other proof is required to establish a prima facie case with regard to the age of the victim at the time of the first incident. Therefore, from the allegations as narrated in the complaint, which are supported in the statements under Section 200 and 202 Cr.P.C., the victim was minor at the time of the first incident, therefore, a prima facie case has been made out against the applicant, therefore, no interference is called for in the instant case.
7. Having heard the rival submissions made by learned counsels for the parties, this Court has carefully gone through the record of the case. From the record of the case, it is apparent that application under Section 156(3) Cr.P.C. was filed by the opposite party no.2 on 16.06.2023, alleging therein the incident of forcible rape by the applicant herein in the month of December, 2018, while she was coming back from the school and it is further alleged that a video of the aforesaid incident of rape was also prepared by the applicant herein and he has threatened that if the incident ever narrated by the victim to any person, he will make the video viral. As per the High School's marksheet, her date of birth is 29.07.2005, therefore, at the time of the first incident she was about thirteen and a half years old and at such a tender age, the threat perceptions created by the applicant cannot be ruled out and subsequently the incidents have been allegedly caused by the applicant due to such threat perceptions created by the applicant herein. It is further alleged that subsequently the applicant herein has promised the victim to marry and on such promise of marriage he continued to rape the victim and subsequently on 15.05.2023, the family members of the applicant has refused to marry to the opposite party no.2 and threatened her to keep away from the applicant herein else she will be done to death. In the statement under Section 200 Cr.P.C., the victim has specified the date of incident as 16.12.2018 and has narrated the place of incident as well. Also, the threat perceptions created by the applicant and the continuous rape committed under the false promise of marriage and subsequently he has refused to marry the victim.
8. In view thereof, on 16.06.2023, the instant application under Section 156(3) Cr.P.C. was filed. In the aforesaid application it has been specifically added by the opposite party no.2 that without the registration of the F.I.R. the proper medical examination of the victim is not possible. Therefore, the application under Section 156(3) Cr.P.C. was filed. However, learned Magistrate had treated the aforesaid application under Section 156 (3) Cr.P.C. as a complaint case vide order dated 01.08.2023 and subsequently after recording the statements under Sections 200 and 202 Cr.P.C. by a categorical detailed order with sufficient application of mind, has summoned the
applicant herein alone for the incident, however, in the said application under Section 156(3) Cr.P.C. the mother of the applicant as well as bua were also made accused, who have specifically threatened the victim. There is no dispute with regard to the observation of the Apex Court in Pepsi Foods Ltd. (supra) as well as Mehmood Ul Rehman (supra) that the Magistrate is not a silent spectator, he must apply his mind while summoning the accused. Therefore, from the perusal of the summoning order dated 02.04.2024, it is crystal clear that learned Magistrate has applied his mind to the material available before him. Therefore, this court does not find any illegality in the summoning order passed by the learned Magistrate as from the allegations as made in the complaint as well as the material available before the learned Magistrate a prima facie case is made out against the applicant herein.
9. In view thereof, this Court does not find any good reason to entertain the instant application, specifically, in view of the judgements of the Apex Court in Bhajan Lal (supra), Zandu Pharmaceutical Works Ltd. (supra) and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others : 2021 SCC OnLine SC 315 and the same is accordingly dismissed .
Order Date :- 29.8.2024 Shubham Arya
(Anish Kumar Gupta, J.)
Digitally signed by :- SHUBHAM ARYA High Court of Judicature at Allahabad
2 issues framed by the court
Whether the High Court should quash the summoning order issued against the applicant under Section 482 CrPC alleging offences under IPC 376 and POCSO Act.
Whether the reviewing court finds that the magistrate failed to apply adequate application of mind in the summoning order constituting illegal material jurisdiction.
Colour shows how this judgement treated each authority
Pepsi Foods Ltd. v. Special Judicial MagistrateRelied on¶13
Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 · Who else cites this
Mehmood Ul Rehman v. Khazir Mohammad TundaRelied on¶13
Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420 · Who else cites this
State of Haryana v. Bhajan LalRelied on¶14
State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 · Who else cites this
Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful HaqueRelied on¶14
Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haque : (2005) 1 SCC 122 · Who else cites this
Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and OthersRelied on¶14
Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others : (2021) 19 SCC 401 · Who else cites this
3 provisions across 3 enactments
Rajan Alias Rajan Kumar Rajak
Anish Kumar Gupta
Shubham Arya
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
