Balister Singh Yadav and 2 Others Vs State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lko. and 4 Others

Heard Sri Ratnesh Chandra, learned counsel for the applicants as well as Sri Rao Narendra Singh, learned A.G.A.-I for the State-opposite parties and perused the record.

¶10

The present application under Section 528 of B.N.S.S. has been filed seeking quashing of the entire proceedings of Complaint Case No.61 of 2024, Smt. Usha Devi Vs. Narendra Singh Yadav and others, under Sections 363, 366, 376D IPC, Section 5/6 POCSO Act and Section 3(2)(v) SC/ST Act, Police Station Naveen Modern Police Station, District Shrawasti as well as the summoning order dated 07.02.2025 passed by the Additional Session Judge/Special Judge, POSO Act, Shrawasti, by which applicants have been summoned under Sections 363, 366, 376D, 342, 201 read with Section 511 IPC, Section 5/6 POCSO Act and Section 3(2)(v) SC/ST Act.

¶11

Learned counsel for the applicants submits that an FIR was lodged by the mother of the victim on 07.03.2024 at Case Crime No.0018 of 2024, under Sections 363, 376D, 328, 323, 506 IPC, Section 5/6 POCSO Act and Section 66-E of Information Technology (Amendment) Act, 2008 at Police Station Naveen Modern Police Station, District Shrawasti. Thereafter, statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 12.03.2024, in which she did not make any allegation of rape against the applicants, rather she has exonerated the applicants from the charges levelled against them. The medical report also does not indicate

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A482 No. 2424 of 2025

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that any sexual assault was done against the victim. Counsel for the applicants further submits that after looking into the statement of the prosecutrix recorded under Section 164 Cr.P.C. as well as the medical report and the statements of the witnesses recorded under Section 161 Cr.P.C., the police filed final report on 01.06.2024. Thereafter, a protest petition was filed by the mother of the victim on 21.08.2024, on which the case was treated as complaint case and the statements of the mother as well as the victim were recorded under Sections 200 and 202 Cr.P.C.. After considering the material on record as well as the statements recorded under Sections 200 and 202 Cr.P.C., the trial court summoned the applicants, which is under challenge. In sum and substance, the argument is that after looking into the statement of the prosecutrix recorded under Section 164 Cr.P.C. as well as the medical report and the final report, it is indicative of the fact that applicants are innocent and they have not committed any offence.

¶15

Counsel for the applicants has also taken the plea of alibi by submitting that as per Call Detail Report, the location of applicant no.1 was at Bareilly at the relevant time, whereas as per CCTV footage, applicant no.2 was working in his office Bareilly at the relevant time and as per the photographs and the videography, applicant no.3 was attending the marriage ceremony of his brother-in-law at Bilsi, District Badaun and they did not commit the offence. He further submits that the trial court has not applied its mind and in view of the judgement rendered by the Hon’ble Supreme Court in the case of Vishnu Kumar Shukla and another Vs. State of Uttar Pradesh and another, (2023) 15 SCC 502 (Paragraphs 15, 16, 17 and 22), the applicants are liable to be discharged, for which this Court may direct the applicants to move an application for discharge and the trial court may pass an appropriate order on it at the appropriate stage.

¶16

On the other hand, Sri Rao Narendra Singh, learned AGA-I for the State-opposite parties has submitted that it is a case of gang rape and from perusal of the statements of the mother of the victim and the prosecutrix, the offence under Sections 363, 366, 376D, 342, 201 read with Section 511 IPC, Section 5/6 POCSO Act and Section 3(2)(v) SC/ST Act is made out against the applicants, therefore, the applicants have to surrender firstly before the trial court and take recourse to law as may be available

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to them. Apart from it, the case triable by the Sessions Court, therefore, the Chief Judicial Magistrate cannot discharge the applicants. He has further drawn the attention of the Court towards Serial No.15F of the Medico Legal Examination Report of Sexual Violence annexed as Annexure No.13 to the application, wherein penetration by penis in the genitals (vagina and/or urethra) of the victim is mentioned. He also submits that a heinous crime has been committed by the applicants and it is not the case where the discharge application can be heard in absence of surrender. In support of his contention he has placed reliance upon the decision of the Hon’ble Supreme Court rendered in the case of Central Bureau of Investigation Vs. Aryan Singh and others, (2023) 18 SCC 399 (paragraph-5).

¶20

I have gone through the judgement passed by the Hon’ble Supreme Court in the case of Vishnua Kumar Shukla (supra). In the said judgement, there is some dispute between the tenant and the landlord and respondent no.2, who claimed to be the tenant of the property in question, had on 31.05.2011 filed Regular Suit No.104 of 2011 for permanent injunction before the Civil Judge (Senior Division), South, Lucknow, which was based on a so-called “Memorandum of Agreement of Tenancy” dated 24.11.2005, in which present symbol of the Indian National Rupee i.e. ₹, has been shown but the said symbol came into being only in the year 2010 and thus, could not have been reflected in a “memorandum” of the year 2005, which clearly exposes the falsity of the claim. Moreover, it was submitted that this would also amount to perjury by filing of a forged document before a court of law, for which the appellants had filed an application under Section 340 Cr.P.C. before the court concerned. Hon’ble Supreme Court in paragraph-17 of the said judgement held that the innocent person should not be forced to face trial even when the overwhelming material points to his/her innocence. Obviously, the hands of a Court ought not to be tied down, and especially not by a higher court, and more so not against liberty. At the same time, Hon’ble Supreme Court has also taken note of the fact that the said view can be adopted in unimpeachable documents.

¶21

In the present case, I find that there is a serious allegation of gang rape of a minor girl against the applicants. Whether the applicants are innocent or not, i.e. the question to be decided by the trial court and the documents

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which are on record in the shape of statements of the victim and her mother recorded under Sections 200 and 202 Cr.P.C., indicate that serious allegation of gang rape has been levelled against the applicants. Therefore, this is not the stage where this Court can do mini trial and adduce evidence.

¶25

In view of the discussions made in the aforesaid paragraphs, I do not find any illegality or infirmity committed by the trial court in summoning the applicants.

¶26

Application is devoid of merit. It is accordingly rejected . However, the applicants may seek remedy under law at the appropriate stage.

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(Brij Raj Singh,J.)

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October 17, 2025

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Rao/-

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Digitally signed by :- CHEBROLU SRINIVASA RAO High Court of Judicature at Allahabad, Lucknow Bench

Balister Singh Yadav and 2 Others v. State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lko. and 4 Others

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Balister Singh Yadav and 2 Others v. State of U.P. Thru. Its Addl. Chief Secy. Deptt. of Home, Lko. and 4 Others

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