1

A.F.R.

Judgment Reserved On: 08.02.2023

Judgment Delivered On: 13.02.2023

Court No. - 68

Case :- APPLICATION U/S 482 No. - 39234 of 2022

Applicant :- Suneeta Pandey

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Ravindra Prakash Srivastava

Counsel for Opposite Party :- G.A.

Hon'ble Shekhar Kumar Yadav,J.

1.

Heard Sri Ravindra Prakash Srivastava, learned counsel for the

applicant and Sri R.P. Mishra, learned A.G.A. for the State as well as

perused the record.

2.

The present application has been filed by the applicant- Suneeta

Pandey for quashing of the impugned order dated 03.12.2018, whereby

the applicant has been summoned to face the trial u/s 376-D, 212 IPC in

exercise of power conferred under Section 319 Cr.P.C. as well as entire

proceedings of Special Criminal (Sexual) Case No.08 of 2016 (State Vs.

Fanindra Mani Ojha alias Dablu and others) arising out of Case Crime

No.874 of 2015, under section 376-D & 212 I.P.C., Police Station-

Kotwali Bansi, District- Siddharth Nagar, pending in the court of

Additional District and Sessions Judge- Ist, Siddharth Nagar with a

further prayer to stay the further proceedings of the aforesaid case.

3.

As per F.I.R., the incident took place on 24.06.2015 and the F.I.R.

was lodged against unknown persons on 28.07.2015 bearing Case Crime

No. 874 of 2015, under Sections 363 and 366 I.P.C. alleging therein that

someone has enticed away the daughter of the informant aged about 15

years and took her with him.

4.

Statement of the victim has been recorded under Section 161 and

164 Cr.P.C. The victim in her statement recorded under Section 164

2

Cr.P.C. has stated that applicant was involved in the alleged incident but

the applicant was not named in the charge sheet. Thereafter, opposite

party no.2 filed an application under Section 319 Cr.P.C. for summoning

the applicant and the court below vide order dated 03.12.2018 has

summoned the applicant to face trial for the offence under Sections 376-

D and 212 Cr.P.C. It is this order which is subject matter of challenge

before this Court.

5.

Learned counsel for the applicant submitted that the applicant is a

lady hence no offence under Section 376-D I.P.C. is made out against the

applicant and she has been wrongly summoned by the trial court. It is

further argued that the applicant has been summoned in exercise of

powers conferred under Section 319 Cr.P.C. solely relying upon the

statement of Victim (P.W-1) as well as some other extraneous

documents, which in fact is not sufficient. He contends that in view of

the aforesaid facts and circumstances, the impugned order under

challenge is vitiated by manifest error of law and amounts to blatant

miscarriage of justice, and, therefore, is liable to be quashed.

6.

Learned counsel for the applicant has further argued that the trial

court has grossly erred in summoning the applicant for the offence

punishable under Sectin 376-D IPC and Section 212 IPC. It is argued

that a woman cannot commit rape and therefore, she cannot be

prosecuted for gang rape because woman cannot be said to have an

intention to commit rape. In support of his submission, he relied upon a

decision of Hon'ble Supreme Court in Priya Patel Vs. State of M.P. and

another, (2006) 3 SCC (Cri.) 96. He has further relied upon the

judgment of the Apex Court in the case of State of Rajasthan Vs. Hemraj

& Another reported in 2009 (12) SCC 402. It is also submitted that the

applicant cannot be held guilty even in terms of the explanation to

Section 376(2)(g) of IPC.

The extract of Section 375 & 376(2)(g) IPC prior to amendment is

as under:-

3

375. Rape :-A man is said to commit "rape" who, except in

the case hereinafter excepted, has sexual intercourse with a

woman under circumstances falling under any of the six

following descriptions:--

First.Against her will.

Secondly.Without her consent.

Thirdly.--With her consent, when her consent has been obtained by

putting her or a