Shaheen Vs State of U.P. and 3 Others

Neutral Citation No. - 2025:AHC:142946

Court No. - 75

Case :- APPLICATION U/S 528 BNSS No. - 14874 of 2025

Applicant :- Shaheen Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Syed Mohammad Abbas Abdy, Kushagra Srivastava,Shahrukh,Sr. Advocate Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Heard Sri Syed Mohammad Abbas, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State.

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This application u/s 528 of BNSS has been preferred to quash the Summoning Order dated 17.03.2025 passed by Additional District and Session Judge/Special Judge (POCSO ACT) Ist Amroha arising out of Case Crime No. 390 of 2024 (State Vs. Shaheen) under Section 376, 506 of I.P.C. and Section 3/4 of POCSO Act, Police Station-Gajraula, District-Amroha and the entire proceedings of Complaint Case No. 129 of 2024 (Gulshama vs Shaheen) under Section 376, 506 of I.P.C. and Section 3/4 of POCSO Act, Police Station-Gajraula, District-Amroha arising out of Case Crime No. 390 of 2024 (State Vs. Shaheen) under Section 376, 506 of I.P.C. and Section 3/4 of POCSO Act, Police StationGajraula, District- Amroha.

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This Court on 27.05.2025 issued notices upon the opposite parties no. 2 and 4. There is an office report dated 16.06.2025 that the notice has been served upon the complainant. Till the dictation of the order nobody has put in appearance. Holding the service to be sufficient, the Court is proceeding with the matter.

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A joint statement has been made by learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application be decided at the fresh stage.

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The case of the applicant is that a first information report stood lodged by the opposite party no. 2 on 18.05.2024 being FIR No 0390 of 2024 at 00:25 hours under Sections 376, 506 IPC relatable to the commission of the offences on 01.05.2024 with an allegation that the opposite party no. 2 happens to be the resident of District Amroha and in the adjacent village Palwada, District Hapur, the applicant resides in the house of his maternal uncle who executes the work of felling trees and he often visits the house of the opposite party no. 2 with respect to felling of the trees and has bad eyes over the opposite party no. 2 and whenever the opposite party no. 2 does agricultural work in her agricultural field then he follows her with bad intentions and on 01.05.2024 at about 7:00 in the evening the opposite party no. 2 victim along with her sister were dumping the cow fodder then the applicant along with another person came in a four wheeler took with countrymade pistol and pointed the same towards the opposite party no. 2 and touch the private places and on the strength of the countrymade pistol outraged the modesty of the opposite party no. 2 and the sister of the opposite party no. 2 victim had gone for some work to bring something and when hue and cry was raised then the onlookers Waseem Ahmad son of Shaukeen, Shaheen wife of Irshad came on the spot and witnessing the same the applicant along with the accomplice ran away hurling abuses and threatening. Though the attempts were made for lodging of the FIR but after constant efforts the FIR came to be lodged. Post recording

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of the statement under Section 161 and 164 of the victim a final report came to be submitted on 08.07.2024 and thereafter a protest petition came to be preferred on 02.09.2024 by the opposite party no. 2 wherein the case transformed into a complaint case by virtue of the order dated 24.09.2024 and post recording of the statement of the opposite party no. 2 under Section 223 BNSS and of Zulaikha and Waseem Ahmad under Section 225, the applicant came to be summoned under Section 376, 506 IPC read with Section 3/4 of the POCSO Act on 17.03.2025.

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Questioning the summoning order, the present application has been preferred.

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Learned counsel for the applicant has submitted that the summoning order cannot be sustained for more than one reason firstly, though the medical examination was conducted but nothing abnormal was found so as to implicate criminality upon the applicant which shows that the prosecution theory itself stands eroded. Secondly, further submission is that an investigation being made post lodging of the first information report a final report came to be submitted on 08.07.2024, however, without there being any extra inputs, the applicant has been summoned on mere asking. Thirdly, with respect to the incident dated 06.12.2023 a proceeding under Section 156(3) of the Cr.P.C. came to be lodged being Case No. 1679 of 2023 and the complaint was rejected and the said order became final but just in order to dictate terms and to pressurize the applicant, the impugned FIR has been lodged creating an incident dated 01.05.2024. Learned counsel for the applicant further submits that the most crucial question which goes to the root of the matter is that the impugned proceedings came to be triggered on 02.09.2024 while lodging the proceedings for protest pursuant whereto the case transformed into a complaint

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case on 24.02.2024 and the applicant has been summoned without complying with the mandatory provision as contained under first proviso to sub-section (1) of Section 223 of BNSS. He referred to paragraph 3 to 6 of the supplementary affidavit to buttress his submission, according to him, since the proceeding stood triggered post enforcement of BNSS on 01.07.2024, thus, the mandatory provisions as contained first proviso to sub-section (1) of Section 223 ought to have been complied with and in failing to do so the case of the applicant stands prejudiced and the entire proceedings stands vitiated and the applicant was not put to notice at the pre-cognizance stage. He seeks to rely upon the judgment of the Coordinate Bench of this Court in Prateek Agarwal Vs. State of U.P. : APPLICATION U/S 482 No. - 10390 of 2024. He, thus, submits that the summoning order cannot be sustained.

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Sri Vikas Sharma, learned State Law Officer, on the other hand, submits from the perusal of the statement so made under Section 200 and 202 vis-a-vis the allegations contained in the complaint prima facie offences are made out and the case becomes triable as there are no material contradictions or variations in the statements under Section 200 and 202 vis-a-vis allegations in the complaint. He further submits that whatever arguments are being sought to be raised with respect to the proceedings lodged earlier by the opposite party no. 2 which resulted in rejection are matter of defences consideration whereof would be required when the trial commences, however, according to him since the proceedings in respect of the complaint case triggered and emanated post enforcement of BNSS-2023 with effect from 01.07.2024, thus, the Court was under obligation to have resorted to the mandatory provision as contained under first proviso to sub-section (1) of Section 223. He submits that the said exercise is lacking as per the

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order sheet, thus, the order impugned is set aside, matter be remitted back to the court below to pass a fresh order.

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I have heard the submission so made across the bar and perused the record carefully.

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Apparently, post lodging of the first information report, the statements under Section 161 and 164 Cr.P.C. was recorded which resulted in a final report dated 08.07.2024, thereafter post lodging of the protest petition on 02.09.2024 the case transformed into a complaint case on 24.09.2024 and thereafter the applicant came to be summoned on 17.03.2025 under Section 376, 506 IPC read with Section 3/4 of the POCSO Act. In the opinion of the Court, the entire proceedings stood triggered pursuant to the complaint case while treating the same into under BNSS as the statement under Section 223 and 225 of the BNSS stood recorded of the witnesses. Once the proceedings were undertaken under the provisions of BNSS post enforcement of BNSS with effect from 01.07.2024 then the proviso contained under first proviso to sub-section (1) of Section 223 would come into play. For ready reference, Section 223 of BNSS is quoted hereinunder.-

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"223. Examination of complainant. - (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

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Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:

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Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -

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(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

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(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

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Provided also that if the Magistrate makes over the case to another

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Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them:

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(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless -

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(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

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(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."

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Since in the present case as apparent from the summoning order as the complete certified copy of the order sheet which has been handed over to the Court does not indicate that the applicant was put to notice at a pre-cognizance stage in conformity and in consonance with the provisions of first proviso to sub-section (1) of Section 223 of BNSS, thus, the proceedings stands vitiated.

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Accordingly, the application stands decided in the following terms.-

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(a) the order dated 17.03.2025 passed by the Court of Additional Session Judge/Special Judge (POCSO Act-I) District Amroha in complaint case no 129 of 2024 is set aside; (b) matter stands remitted back to the court below to pass a fresh order strictly in accordance with law; (c) for facilitation and earlier disposal, the applicant/parties shall file the certified copy of the order by 29.08.2025.

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Needless to point out that the passing of the order may not be construed to be an expression on the merits of the matter and the court below shall pass a fresh order strictly in accordance with law.

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Order Date :- 20.8.2025 Rajesh

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

Shaheen v. State of U.P. and 3 Others

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