HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 33024 of 2025 Court No. - 81 HON'BLE CHAWAN PRAKASH, J. 1. Heard Sri Tarun Jha, learned counsel for the applicants, learned A.G.A. for the State and Sri Raj Kumar, learned counsel for the opposite party no. 2 and perused the record. 2. The present application under Section 528 B.N.S.S. has been filed for quashing the entire proceedings of Complaint Case No.2698 of 2024 (Smt. Khilauni Vs. Ramesh and others), under Sections 323, 376D, 120(B) I.P.C., Police Station Kotwali Konch, District Jalaun, pending in the court of learned Chief Judicial Magistrate, Jalaun at Orai as well as summoning order dated 10.03.2025. 3. It is submitted by learned counsel for the applicants that opposite party no. 2 filed an application under Section 156(3) Cr.P.C. regarding an incident dated 22.03.2015, the said application was allowed by the learned Magistrate and a first information report as Case Crime No. 671 of 2015 was registered against the applicants under Sections 376D, 323, 506 I.P.C. at Police Station Kotwali Konch, District Jalaun against six persons including the applicants. During investigation, police recorded the statement of opposite party no. 2 under Section 161 Cr.P.C. wherein she made no allegation against the applicants. Thereafter her statement was recorded under Section 164 Cr.P.C. wherein she made allegation of rape against the applicants. The police recorded the statement of independent witnesses as well as husband of the opposite party no. 2 wherein they stated that no such incident has taken place. During investigation, Shiv Versus Counsel for Applicant(s) : Tarun Jha Counsel for Opposite Party(s) : G.A., Raj Kumar Haridas And 3 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) Prasad and Prabhu Dayal filed their affidavits before the Station House Officer, Kotwali Konch, District Jalaun stating therein that no such incident took place and the allegations made by opposite party no. 2 were false. The investigating Officer after completing the investigation, found that no offence is made out against the applicants and submitted the final report. Thereafter the opposite party no. 2 filed protest petition. Statement of opposite party no. 2 was recorded under Section 200 Cr.P.C. and witnesses Prabhudayal as PW-1, Sjhiv Prasad as PW-2 and Ramesh Kushwaha as PW-3 and learned Magistrate has summoned the applicants under Sections 323, 376D, 120(B) I.P.C. The opposite party no. 2 and other witnesses have changed the prosecution story. It is further submitted that it is no injury case. The prosecution has failed to produce any medical evidence to substantiate the allegation of offence under Section 376D I.P.C. It is next submitted that no prima facie case is made out against the applicants and learned Magistrate has not taken into consideration the facts of the case properly and has summoned the applicants, therefore, summoning order is liable to be quashed. 4. Per contra, learned counsel for the opposite party no. 2 as well as learned A.G.A. opposed the submissions made by learned counsel for the applicants and submitted that opposite party no. 2 filed an application under Section 156(3) Cr.P.C. against six persons including the applicants with the allegation that her marriage was solemnized with Ramesh and out of their wedlock, two children were born. Her husband was gambler. He used to send her to Haridas for money. She made objection and refused to go with Haridas, brother-in-law of opposite party no. 2. Haridas, Kishor, Veer Singh and Kamlesh used to sexually assault her at the house of Veer Singh. Her husband used to sleep in another room along with children. She stated to her husband but the husband did not assist her. She visited to the police station to lodge the first information report but no first information report was registered. Thereafter she filed a complaint which was allowed and the first information report was registered. The Investigating Officer did not investigate the mater properly and submitted final report. Thereafter the opposite party no. 2 filed protest petition. The learned Magistrate after taking cognizance of the statement of the opposite party no. 2 under Section 200 Cr.P.C. and NA528 No. 33024 of 2025 2 other witnesses under Section 202 Cr.P.C. has summoned the applicants. The learned Magistrate has not committed any illegality in passing the impugned summoning order, It cannot be said that no offence is made out against the applicants. 5. As per fact of this case, the opposite party no. 2 filed an application under Section 156(3) Cr.P.C. regarding the incident of gang rape committed by the applicants. During the investigation, her statement was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The Investigating Officer after completing the investigation, filed final report. Thereafter, a protest petition was filed by opposite party no. 2. Her statement was recorded under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. After recording the statements of the opposite party no. 2 and witnesses, the learned Magistrate has summoned the applicants vide impugned order. 6. From the perusal of material on record and the facts of the case, at this stage, it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relates to the disputed questions on fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 528 B.N.S.S.. At this stage, only prima facie case to be considered in the light of the law laid down by Supreme Court in the case of RP Kapoor Vs. State of Punjab, AIR 1990 SC 66; State of Haryana Vs. Bhajan Lal, 1992 SCC (Criminal) 426; and State of Bihar Vs. P.P. Sharma, 1992 SCC (Criminal) 192. The disputed defence of the applicants cannot be considered at this stage. 7. Considering the facts and circumstances of the case, I do not find any ground to quash the aforementioned case, therefore, the prayer for quashing the same is hereby refused and the application is dismissed. March 31, 2026 Rmk. NA528 No. 33024 of 2025 3 (Chawan Prakash,J.) Digitally signed by :- RAM MURTI KUSHWAHA High Court of Judicature at Allahabad