Ram Prasad vs State Of U.P. & Anr.

Case called out in the revised list. 2. No one is present for and on behalf of opposite party no.2 to oppose this criminal revision, even in the revised call.

Heard Sri Vijay Kumar Mishra, learned counsel for the revisionist, learned A.G.A. for the State and perused the record.

This criminal revision is directed against the order dated 24.10.2024 passed by Additional Sessions Judge / Special Judge, POCSO Act, Prayagraj in Misc. Application No. 579 of 2024 (Ram Prasad Vs. Kuldeep and another) under Section 175 (3) B.N.S.S., Police Station Nawabganj, District Prayagraj, whereby the Court concerned treated the application u/s 175(3) B.N.S.S. moved by revisionist as complaint as well as order dated 19.8.2025 passed by Additional Sessions Judge / Special Judge, Exclusive Court, POCSO Act, Prayagraj in Complaint Case No.930 of 2024 (Ram Prasad Vs. Kuldeep), Police Station Nawabganj, District Prayagraj, whereby the Court concerned rejected the complaint of complainant under Section 223 B.N.S.S.

It has been submitted by learned counsel for the revisionist that an application moved by the revisionist under Section 175(3) BNSS before the Court of learned Special Judge, POCSO Act, Allahabad, was wrongly treated as a complaint case vide order dated 24.10.2024. After recording the statements of the complainant and his witnesses under Sections 223 and 225 BNSS, the same was wrongly rejected under Section 226 BNSS.

Learned counsel for the revisionist argued that Court concerned while deciding the application of the revisionist under Section 175(3) BNSS wrongly assumed that opposite party no. 2 is a public servant and thus wrongly issued notice under Section 175(4) BNSS. Therefore, Court below without applying judicial mind has passed the impugned order dated 24.10.2024, treating his application filed under Section 175(3) BNSS as a complaint case. It was further argued that Court concerned thereafter wrongly dismissed his complaint under section 226 BNSS, even without going through the statements of the witnesses recorded under Sections 223 and 225 BNSS. In this case, the victim was a minor girl at the date of incident and her statement recorded under Section 223 BNSS is consistent as far as the role of opposite party no. 2 is concerned. However the Court below in an illegal and capricious manner has passed the impugned order, which is based on surmises and conjuncture. It was then argued that the Court below was required to find out only a prima facie case at the stage of summoning, however it has wrongly relied upon the defence version by conducting a mini trial. It was lastly argued that the Court below has failed to exercise it's jurisdiction in a lawful manner and thus urged for allowing this revision.

Per contra, learned A.G.A. submits that application of the revisionist filed under Section 175(3) BNSS has been rightly treated as a complaint case by the Court below vide a detailed and reasoned order dated 24.10.2024. After treating the said application as a complaint case, notice to opposite party no. 2 was issued in compliance to first proviso of Section 223 BNSS. After receiving version of the opposite party no. 2, statement of revisionist and his witnesses including the victim were duly recorded by the Court below and after hearing the learned counsel for the revisionist, has passed a detailed and reasoned order, rightly rejecting the complaint vide its order dated 19.08.2025. It was lastly urged that both the impugned orders do not suffer from any illegality, infirmity or perversity and therefore, it was prayed that present criminal revision be dismissed.

In Praban Kumar Mitra v. State of West Bengal 1958 SCC OnLine SC 79, the Constitution Bench of the Hon'ble Supreme Court discussed the nature of revisional powers of a High Court and held that the revisional power is a discretionary power which is to be exercised in aid of justice. Whether the High Court should exercise its revisional jurisdiction depends upon the facts and circumstances of that case.

Further, it is apposite to refer to the powers and limits of the criminal revisional court, which the Hon'ble Supreme Court in the judgment K. Ravi Vs. State of Tamil Nadu & ANR. 2024 INSC 642 observed that the object of remedy of the criminal revision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner.

The revisionist by way of present revision has challenged two impugned orders first is the order dated 04.10.2024 and second is the order dated 19.08.2025. A perusal of the first impugned order dated 04.10.2024 reveals that written objection dated 04.10.2024 filed by the opposite party no. 2 was also considered alongwith report of the concerned police station. However, Court below while relying upon the judgment of Hon'ble Supreme Court in Joseph Madhuri and others vs. Swami Sachidanand Harisakshi, 2001 Supplementary ACC 957, judgment of Full Bench of this Court in Ram Babu Gupta and others vs. State of U.P. and another, 2001 (43) ACC 50 and a Division Bench judgment this Court in Sukhbasi vs. State of U.P., 2007 (9) ADJ-1, has treated the aforesaid application as a complaint case. The Court below found that the revisionist is having complete knowledge of the incident and the opposite party no. 2 is well known to him and in this background, the Court below has treated the aforesaid application of the revisionist filed under section 175(3) BNSS as a complaint case. Issuance of notice to opposite party no. 2 by assuming him a public servant is a mere irregularity and is not an illegality vitiating the whole proceeding. The aforesaid order was passed on 24.10.2024 and after this order, revisionist participated in the proceeding and got recorded his statement under Section 223 BNSS as well as statements of his witnesses under Section 225 BNSS. Therefore, when his complaint was rejected vide second impugned order dated 19.08.2025, then he has challenged the impugned order dated 24.10.2024. The revisionist was required to approach revisional Court immediately after treating his application as a complaint case. However instead of approaching revisional Court, he participated in further proceeding and now has belatedly challenged this impugned order dated 24.10.2024. In the opinion of this Court, once having acceded to the jurisdiction of Court below, the revisionist cannot challenge the first impugned order. However, perusal of the impugned order reveals that there seems to be no illegality, irregularity or perversity while considering the revisionist's application filed under section 175(3) BNSS as a complaint case.

A perusal of the impugned order dated 19.08.2025 reveals that the Court below in its para-10 cited five judgments of Hon'ble Apex Court and one judgment of this Court, however out of these six cited judgments, five judgments are to the effect that a Magistrate has to consider only a prima facie case and a Magistrate has no power to meticulously evaluate or deeply examine the accused's defence version while considering the dismissal of a complaint case. However, the Court below has also cited judgment of Apex Court in M/s Pespi Foods Ltd. and another vs. Special Judicial Magistrate and others, 1998 (5) SCC 749, wherein it has been held that summoning of an accused in a criminal case is a serious matter and criminal law can not be set into motion as a matter of course. However while analysing the facts as enumerated in impugned order from paras-2 to 9, the Court below has relied upon the version of the opposite party no. 2 as well as the fact that no medical evidence regarding alleged rape has been produced by the complainant's side. Victim (CW-1) in her statement recorded under Section 223 BNSS as reproduced in para-8 of the impugned order has supported the prosecution story, so far as the date, time and place of incident is concerned and this statement as CW-1 is statement on oath. The revisionist has also enclosed a copy of this statement in paper book at page 91 and however perusal of the same, clearly reveals that Presiding Officer at the time of recording this statement, has even not adhered to the dictum of M/s Pespi Foods Ltd. (Supra) while questioning the victim to elicit answer to find out the truthfulness of the allegations or otherwise. The statement of victim is consistent and her father (revisionist) and her mother CW-2 are not the witnesses of incident of rape but have clearly stated that their depositions are based upon what victim (CW-1) has told them soon after the incident.

The approach of Court below while passing the impugned order seems to be a very casual in nature. The learned Presiding Officer has himself quoted various judgments of Supreme Court and he was required to see whether a prima facie case is made out or not, but he has meticulously examined the accused's defence version while dismissing the complaint of revisionist that too in utter disregard to the judgment of Allahabad High Court in Surinder Pal Jetley vs. Bhishm Singh, 1995 (32) ACC 18 as cited in para-10.5 of the impugned order. Law is well settled that at the stage of summoning, the Magistrate is required to see whether the allegations made in the complaint are prima facie sufficient to proceed against the accused. At this stage, it is impossible to go into the truthfulness or otherwise of the allegations made in the complaint and the Magistrate need not enquire into the merits and demerits of the case. At this stage, the Magistrate is concerned with the allegations made in the complaint and the evidence led in support of same, for prima facie satisfaction that whether sufficient grounds for proceeding against the accused exists or not. However, the Court concerned has not only considered the accused defence version, however, it has been wrongly swayed by the fact that no medical evidence is available on record. It is a case regarding allegation of rape with a minor victim qua an incident dated 23.06.2024. When the police took no action on the written complaint moved by the opposite party no. 2 in concerned police station, then he approached higher authorities by sending a copy of complaint through registered post. However, when no FIR was lodged, he approached Court concerned by filing an application under Section 175(3) BNSS on 06.08.2024, unfortunately, the same was treated as a complaint and in this background when the police failed to take any action, then certainly there is no question of medical examination of the victim. Law is well settled that even when there is no medical examination of rape of victim, still based on her trustworthy deposition, a conviction can be sustained. If the evidence of prosecutrix inspires confidence, in that eventuality such a deposition can be relied on even without seeking corroboration of her statement. The Court below has thus miserably failed to follow the well settled principles of law. The second impugned order dated 19.08.2025 has been passed without proper application of judicial mind.

In view of the above, the Court below has passed the second impugned order dated 19.08.2025 in utter disregard to the well settled principles of law as far as summoning of an accused in complaint case is concerned and is grossly illegal as well as perverse, which is liable to be set-aside.

Therefore, the first impugned order dated 24.10.2024, it is hereby affirmed and second impugned order dated 19.08.2025 passed by Additional Sessions Judge / Special Judge, POCSO Act, Prayagraj in Misc. Application No. 579 of 2024 (Ram Prasad Vs. Kuldeep and another) under Section 175 (3) B.N.S.S., Police Station Nawabganj, District Prayagraj, is hereby set-aside. The learned Court below is directed to pass order afresh in accordance with law on the point of summoning of accused in the light of pre-summoning evidence available on record before it.

As a result, the present criminal revision succeeds and the same is, accordingly, partly allowed.