Shiv Kumar Vs State of U.P. and 3 Others

Neutral Citation No. - 2025:AHC:113615

Court No. - 75

Case :- APPLICATION U/S 528 BNSS No. - 8413 of 2025 Applicant :- Shiv Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Santosh Kumar Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Vikas Budhwar,J.

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Supplementary affidavit filed today is taken on record.

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Heard Sri Santosh Kumar Shukla, learned counsel for the applicant and Sri S.K. Singh, learned AGA for the State.

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This Court while entertaining the application had issued notices to opposite parties no. 2 and 4 on 17.03.2025. There is an office report dated 09.05.2025 that the opposite parties no. 2 and 4 have been personally served, but nobody has put in appearance till the dictation of the order.

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This application u/s 528 of BNSS has been preferred to set-aside the impugned summoning order dt. 11.10.2024 as well as entire proceedings of Complaint Case No. 284/2024 (Ichchha Ram Vs. Buddha Singh & Others), U/S 354, 323, 506 I.P.C. & 7/8 POCSO Act pending against the applicant in the court of Ld. Special Judge (POCSO Act), Auraiya.

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The case of the applicant is that on 21.03.2024 the opposite party no. 2-complainant lodged the proceedings under Section 156(3) Cr.P.C. for the offences under Sections 323, 504, 506, 452, 354 IPC read with Section 3/4 of the POCSO Act with an allegation that on 20.03.2024 at about 7:30 in the evening the complainant was sitting on the door of the house and at that point of time the accused Buddh Singh along with the applicant herein and three other unnamed accused barged into the house of the opposite party no. 2-complainant and assaulted him and when the opposite party no. 2 resisted and complained of the said act then the appellant as well as the other co-accused got into the house for inflicting injuries. Despite repeated request made by the opposite party no.2-complainant, the applicant herein and the other coaccused extended indecent behaviour towards the victim who

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happens to be the daughter of the opposite party no. 2, allegation is that even previously also indecent behaviour was being extended to the victim pursuant whereto she became reluctant and was under constant fear and for some happening if she goes to ease herself in order answer natures call. Allegation is that even prior to the said incident earlier also the applicant and the other co-accused had assaulted the opposite party no. 2 and his wife and when the same was complained then the applicant and the other co-accused hurled abuses and with the aid of legs and fist and cuddle assaulted the complainant and when the victim saw the said incident, she made hue and cry then the applicant as well as the other co-accused started molesting the victim who is a minor (14 years old) while touching her private parts. The wife of the opposite party no 2 and the son came in between in order to save the opposite party no. 2 and victim and thereafter, telephonic call was made on the no. 112, however, it was not connected and the applicant and the other coaccused while threatening, ran away. Allegation is that the complainant sustained injuries and he was medically examined in district hospital and a complaint was also lodged before the SSP on 20.03.2024 but when the FIR was not lodged then the proceedings have been lodged. Post lodging of the proceedings, statement under Section 200 of the complainant-opposite party no. 2, the victim under Section 202 followed by of one Nisha, wife of the opposite party no. 2 under Section 202 was recorded and the applicant came to be summoned under Sections 354, 323, 506 IPC read with Section 7/8 of the POCSO Act.

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

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Learned counsel for the applicant has submitted that the applicant has not committed any offence and the entire story so sought to be cooked up is nothing but a bundle of lies. He submits that the nature of the injuries which is stated to have been sustained by the opposite party no. 2-complainant are simple and further there is no iota of evidence to suggest that the victim was assaulted and offences under Section 354, 323, 506 IPC read with Section 7/8 of the POCSO Act was committed. Submission is that the victim was not subjected to medical examination and, in case, the victim was medically examined the truth would have surfaced. Further submission is that the applicant belongs to the same family

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of the opposite party no. 2, they are cousin brothers and there is property/partition dispute among family members which became the basis for lodging of the complaint. It is further contended that prior to passing of the summoning order, an order came to be passed on 10.07.2024 by the court of Special Judge, POCSO Act directing the concerned police station Auraiya to inquire the matter in compliance of Section 202(2) Cr.P.C. and in compliance of the said order dated 10.07.2024, Hemat Kumar, Sub Inspector, Police Station Auraiya, District Auraiya inquired the matter and prepared a detailed report and submitted before the court below according to which, the entire story so sought to be cooked up by the opposite party no. 2 was exaggerated having no basis. Argument is also to the extent that there was no reference in the complaint with respect to the second daughter of the complainant being Nisha but the Nisha in her statement under Section 202 had also named Atul and it was further alleged that Atul and Shiv Kumar (applicants) had exhibited indecent behaviour. While inviting attention towards the statement under Section 202 of Nisha, it is contended that the name of Ashish alias Atul also finds place with a role that he also committed indecent behaviour and touch the private part of the second daughter of the opposite party no. 2, Nisha. In a nutshell, submission is that there is nothing in the complaint as well as in the statement of the complainant under Section 200 regarding indecent behaviour being exhibited or commission of offences under Section 354 read with Section 7/8 of the POCSO Act with Nisha and the only allegation centres around Janki (victim). In alternate, it is also argued that in the complaint, the allegations have been made against Buddh Singh and the applicant herein regarding molestation and indecent behaviour and offences under Section 354 IPC read with Section 7/8 of the POCSO Act and extending injuries to the opposite party no. 2 but the court of Special Judge, POCSO Act had only summoned the applicant. Thus, it is also contended that the summoning has been passed in a routine manner without there being any satisfaction regarding attraction of the penal provisions even on prima facie basis. Learned counsel for the applicant submits that applicant is an iron cast case and as per the instruction received from his client the applicant shall be filing discharge application before the court below.

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Learned AGA, on the other hand, submits that from the allegations contained in the complaint vis-a-vis the statements under Section 200 and 202 of the Cr.P.C., prima facie, offences are made out and merely because the complainant sustains simple injuries would not be a ground to outrightly overrule the occurrence of the event as according to him injury report fortify the fact that incident took place. Further submission is that mere non-subjection to medical examination of the victim would not be fatal as the same may be a ground which would necessitate consideration at the stage when the trial commences and a final decision is to be taken whether the accused are to be acquitted or convicted. He, however, submits that, in case, the applicant seeks to file discharge application then he has no objection.

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Having heard the submissions so made across the bar and perused the record carefully.

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The sole question which arises for determination is the extent of judicial intervention at this stage. Since the learned counsel for the applicant seeks liberty to file discharge application before the court below taking all legal and factual grounds which are available and permissible under law including those which have been noted in the earlier part of the order, thus, the application stands disposed of leaving it open for the applicant to prefer discharge application before the court below. In case, discharge application is preferred by 25.07.2025 that the court below shall decide the same strictly in accordance with law.

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Till the discharge application is decided, no coercive action shall be taken against the applicant in summoning order dt. 11.10.2024 as well as entire proceedings of Complaint Case No. 284/2024 (Ichchha Ram Vs. Buddha Singh & Others), U/S 354, 323, 506 I.P.C. & 7/8 POCSO Act pending against the applicant in the court of Ld. Special Judge (POCSO Act), Auraiya.

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Protection so accorded today, shall only be available to the applicant in those contingencies wherein, applicant stick to the timeline and does not commit any default to the order passed by this Court.

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Order Date :- 15.7.2025/Rajesh

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

Shiv Kumar v. State of U.P. and 3 Others

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