Court No. - 65

Case :- APPLICATION U/S 482 No. - 4212 of 2023

Applicant :- Gulab @ Gulab Dhar And Another

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Akhilesh Tripathi,Santosh

Kumar Gupta

Counsel for Opposite Party :- G.A.,Abhishek

Chandra,Zeeshan Mazhar

Hon'ble Rajiv Gupta,J.

Heard learned counsel for applicants, Shri Zeeshan

Mazhar, learned counsel for O.P. No.2 and learned

A.G.A and perused the record.

By means of this application, the applicants have

prayed for quashing of the entire proceeding of

complaint no. 21 of 2022, Jeera Devi Vs. Gulab and

another alongwith summoning order dated 7.1.2023

passed by Additional Sessions Judge/Special Judge

(POCSO) Court No. 1, Bhadohi under section 376D,

376AB, 506 I.P.C. and under section 5/6 POCSO Act.

P.S. Gyanpur, District Bhadohi.

Brief facts giving rise to this application are that an

F.I.R. was lodged vide case crime No. 0183 of 2020,

under section 376DA, 506 I.P.C. and section 5g/6

POCSO Act alleging there in that on 12.7.2020 at

about 11.30 p.m. the minor daughter of the

complainant aged about 15 years had gone to

answer call of nature in the field, there the applicants

forcibly gagged her and took her away from the

field and committed offence of rape on her and

further threatened her not to disclose this fact to

any one else she would be done to death.

On the basis of the said F.I.R. the police investigated

the matter and recorded the statements of the

witnesses under section 161 and 164 Cr.P.C. in

which they reiterated the prosecution story.

However, the police despite there being cogent

evidence and material on record disclosing the

commission of offence of rape and commission of

(Aggravated Penetrative) Sexual assault on the child

submitted the final report against the applicants.

After submission of final report, on being noticed, the

first informant appeared before the court below and

filed a protest petition with the prayer that final

report be rejected and the applicants be summoned

to face trial. The court below rejected the said

protest petition, however, directed for further

investigation vide order dated 22.1.2021.

Purusant to the said order, the police after making

further investigation again submitted final report

against the applicant. Consequently, the first

informant was again noticed and she filed a protest

petition with the prayer that final report be rejected

and the applicants be summoned to face trial.

The said protest petition was thereafter treated as a

complaint and the witnesses were directed to get

their statements recorded under section 200 and 202

Cr.P.C. Pursuant to the said order the first

informant/complainant appeared before the court

below and her statement was recorded in which she

has categorically stated that on the date of incident

her minor daughter had gone to answer call of

nature where the applicants committed aggravated

penetrative sexual assault on the child. Thereafter

the statement of the victim was recorded under

section 202 Cr.P.C. in which she reiterated that on

the date of incident i.e. 12.7.2020 at about 11.30

p.m. she had gone to answer call of nature where

the applicants infact forcibly gagged her and taken

her in another field and thereafter both of them

committed offence of rape on her and thereafter left

the place of incident by threatening her not to

disclose this fact to any one. Thereafter the

magistrate recorded the statement of Vijay Bhan who

also reiterated the same story.

Learned magistrate after concluding the enquiry

and on the basis of statements of the complainant

and the statements of the witnesses recorded under

section 200 and 202 Cr.P.C. passed a detailed order

on 7.1.2023 summoning the applicants to face trial

under section 376D, 376AB, 506 I.P.C. and under

section 5/6 POCSO Act.

Bein