Neutral Citation No.

- 2024:AHC:77879

Court No. - 92

Case :- APPLICATION U/S 482 No. - 8211 of 2024

Applicant :- Raja Vijay Singh And 3 Others

Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Amit Daga,Avdhesh Narayan Tiwari
Counsel for Opposite Party :- Ajay Sengar, G.A.,Gunjan Yadav,
Gyanendra Prakash Srivastava, Kamal Singh

Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri Amit Daga, learned counsel for the applicants, Sri
Gyanendra Prakash Srivastava assisted by Sri Ajay Sengar, learned
counsel for the opposite party no.2, Sri Pushpendra Singh Jadon,
learned A.G.A for the State and perused the record.
2. The instant application under Section 482 Cr.P.C. has been filed
for quashing the summoning order dated 05.02.2024 passed by
Additional District and Sessions Judge/Special Judge, POCSO Act,
Jalaun as well as entire proceeding of Complaint Case No.10 of
2023, under Sections 323, 504, 506, 363, 366, 376D IPC and 5g/6
of POCSO Act, Police Station - Kadaura, District Jalaun.

3. Contention of learned counsel for the applicants is that the

impugned proceeding is not only illegal but also malicious. He
further submitted that this complaint was filed before the Special
Judge, POCSO Act and in such cases to create jurisdiction to the
POCSO Judge, there must be evidence showing that victim was
child at the time of incident. It is also submitted by counsel for the
applicants that only document which was filed by the
victim/complainant was junior high school marks sheet showing
her date of birth as 02.07.2006 but she had mentioned her date of
birth in complaint as 02.11.2006. He further contended that parents
of the victim had also filed affidavit before the court mentioning
that junior high school marks sheet is forged as she never admitted
in that school which had issued junior high school marks sheet. It
is also submitted by counsel for the applicants that applicants also
obtained some documents including the letter of the headmaster of
concerned primary school showing that the marks sheet annexed
by the victim is forged.

4. In support of his contention, learned counsel for the applicants

relied upon the judgement of the Apex Court in the case of P.
Yuvaprakash vs. State represented by Inspector of Police in
Criminal Appeal No. 1898 of 2023 in which Hon'ble Apex Court
observed that in case of dispute about the date of birth then
ossification test must be conducted and it was also observed that
for determination of age Section 94 of Juvenile Justice Act should
be taken into consideration which prescribes the admissible
documents for age determination of the victim. For the
determination of age of the victim, date of birth certificate of
school or matriculation certificate should be given priority. Further
contention of counsel for the applicants is that the story mentioned
in the complaint as well as statement is absolutely improbable
which cast doubt over the entire story. It is also submitted by
counsel for the applicant that the witnesses, who were examined
under Section 202 Cr.P.C. belong to different place and how they
came on the spot was not explained by the complainant in her
complaint. Lastly, it was submitted by counsel for the applicants
that the vehicle which was mentioned in the complaint as well as
statement, was not present at the place of incident which is
established from the GPS location chart showing the location of
vehicle.
5. Learned counsel for the applicants further relied upon the
judgement of the Apex Court in the case of Krishna Lal Chawla
and others vs State of Uttar Pradesh and another; (2021) 5
SCC 435 in which Hon'ble Apex Court observed that issuance of
summon is a serious matter and before issuance of summon court
must fully satisfy regarding the necessity and correctness of the
allegations made in the complaint and also observed that frivolous
litigation should be quashed by the court while exercising the
power under Section 482 Cr.P.C.

6. Per contra, learned counsel for the opposite party no.2 submitted
that on the basis of statement of victim girl as well as marks sheet
of junior high school, it is established that she was below 18 years
and the affidavit submitted by the parents of the victim cannot be
taken into consideration at this stage because it is the victim who
can produce the witness apart from examination herself. Any other
evidence can be seen during trial and not at the time of issuance of
process.

7. In support of his submission, leaned counsel for the opposite

party no.2 has relied upon the judgement in the case of Md.
Allauddin Khan vs The State of Bihar and others in Criminal
Appeal No.675 of 2019 in which Hon'ble Apex Court observed
that while exercising the power under Section 482 Cr.P.C., the
High Court has no jurisdiction to appreciate the evidence and even
if there are contradictions or inconsistencies in the statements of
the witnesses that is essentially an issue relating to appreciation of
evidence and the same can be gone into by the Judicial Magistrate
during trial. He further relied upon the judgement of the Apex
Court in the case of Sonu Gupta vs Deepak Gupta and others in
Criminal Appeal No.285 of 2015 as well as the judgement of
Chilakamarthi Venkateshwarlu and another vs State of
Andhra Pradesh and another in Criminal Appeal No. 1082 of
2019 in which the Apex Court observed that at the time of issuance
of summon under Section 204 Cr.P.C., court has to see prima facie
case on the basis of complaint as well as statement, at this stage
court cannot conduct roving inquiry in the nature of mini trial.

8. Learned AGA for the State has submitted that there is no

illegality in the summoning order and even if it has accepted for
the sake of argument, it was not a case of rape even then injury
report shows that victim girl was harassed and her marks sheet
shows that on the date of incident she was minor, even the case of
sexual harassment against minor will attract the provision of
POCSO Act. It was also submitted by learned AGA that GPS
location annexed by the applicants shows that till 1.44 P.M. on
20.09.2023 presence of vehicle was at Allahabad but subsequently
the GPS location of vehicle was near the place of incident.

9. After hearing the learned counsel for the parties and perusal of
record, it appears that the victim girl in the complaint as well as in
the statement has made specific allegations of abduction and
thereafter gang rape. In support of her claim regarding the age, she
has filed junior high school marks sheet in which the date of birth
is mentioned as 02.07.2006, though in the averment of complaint
as well as statement of girl, there are minor contradictions but
there are clear allegations of abduction and rape upon the victim
and injury report which prepared on the date of incident also
shows that some incident must have been happened. It is
established law that at the time of summoning the accused, court
has to see prima facie case on the basis of evidence available on
record. In the present case, there was allegation of victim girl for
 abduction as well as gang rape against the applicants. In support of
her age, she had filed marks sheet of junior high school. Whether
the junior high school marks sheet is correct or not that can be seen
at the time of trial. Therefore documents annexed by the applicants
along with this application showing contradictions as well as
forgery regarding junior high school marks sheet filed by victim
(complainant) can be looked into by the court during trial and even
otherwise, it is accepted that is not a case of rape as medical
examination report dated 27.10.2023 of victim does not support
the allegation of rape even then offence of sexual assault other
then rape with minors will be within the jurisdiction of Special
Judge, POCSO Act. Whether case falls under particular section or
not that can be seen at the time of framing charges. Therefore, this
Court does not find any good ground to quash the impugned
proceeding.

10. Accordingly, the present application is dismissed.

Order Date :- 1.5.2024

A.Kr.

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