Neutral Citation No. - 2025:AHC:68233 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 11979 of 2025 Applicant :- Munendra Alias Ramu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anil Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Amit Kumar Dubey, the learned counsel for applicant and the learned A.G.A. for State/opposite party-1. Perused the record. At the very outset, the learned A.G.A. submits that notice of present application has been served upon first informant/opposite party-2 on 8.4.2025. However, inspite of service of notice, neither any counter affidavit has been filed by first informant/opposite party-2 in opposition to this application, nor any one has put in appearance on his behalf to oppose this application, even in revised call. Applicant- Munendra Alias Ramu who is a charge sheeted accused and facing trial before Court below has approached this Court by means of present application under section 528 BNSS with the following prayer: "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to stay the effect an operation of the impugned order dated 19.03.2025 passed by Additional Session Judge (Rape and POCSO Act), Court No. 2, Pilibhit in Special Session Trial No. 1062 of 2022 (State Vs. Munendra @ Ramu and others) arising out of Case Crime No. 219 of 2022, Us 323, 342, 376, 506 IPC and Section 5/6 POCSO Act, Police Station Bilsanda, District Pilibhit. It is further prayed that this Hon'ble Court may be pleased to direct the learned court below to consider the application of the applicant dated 28.02.2025 in Special Session Trial No. 1062 of 2022 (State Vs. Munendra @ Ramu and others) arising out of Case Crime No. 219 of 2022, U/s 323, 342, 376, 506 IPC and Section 5/6 POCSO Act, Police Station Bilsanda, District Pilibhit, during the pendency of the present Criminal Misc. Application before this Hon'ble Court and/or may pass such other and further orders which this Hon'ble Court may deem fit and proper in the facts & circumstances of the case, otherwise the applicant would suffer an irreparable loss and injury." Record shows that an application dated 28.2.2025 (paper no. 31 kha) was filed by applicant before Court below with the prayer that DNA test of the child who is alleged to have been born out of the co-habitation of applicant and the prosecutrix, may be got conducted to establish the innocence of the applicant.This application was opposed by the prosecution. However, aforesaid application was rejected by Court below vide order dated 19.3.2025. Perusal of impugned order dated 19.3.2025 will go to show that Court below upon appraisal and appreciation of material on record, recorded the following findings. Firstly, the application is not maintainable at this belated stage. Secondly the application has been filed after prosecution evidence is over. Thirdly no provision has been mentioned in the application. Fourthly the prosecutrix in her deposition before court below has clearly stated that she has appeared to give her evidence alonwith her daughter who wsa born on account of rape conducted upon her by accused applicant. Fifthly, the trial is at the stage of Section 313 Cr.P.C. Sixthly, the application has been filed without any supporting material. Learned counsel for applicant submits that order impugned in this application is manifestly illegal and arbitrary. As such, the same is liable to be quashed by this Court. According to the learned counsel for applicant, the application dated 28.2.2025 (paper no., 31 kha) was rightly filed by applicant. Since the criminaliry alleged against applicant could have been decided specifically either way therefore no prejudice can be said to be caused to either of the parties. In view of above, the findins recorded by Court below for rejecing the aforementioned application filed by applicant are superficial findings and therefore perverse. On the above premise, he therefore contends that order impugned is liable to be quashed by this Court. Per contra, the learned A.G.A. representing State/opposite party-1 has vehemently opposed the present application. According to the learned A.G.A. the order impugned in present application is perfectly just and legal, and therefore, the same is not liable to be interfered with by the Court.Court below while rejecting the application dated 28.2.2025 filed by accused applicant has recorded clear and categorical findings. However, the findings so recorded by Court below could not be dislodged by the learned counsel for applicant as being illegal, perverse or erroneous. It is by now well settled that if the findings cannot be dislodged the conclusion cannot be altered. It is further submitted by the learned A.G.A. that the prosecutrix deposed before Court below. In her deposition before Court below she has categorically stated that she has appeared for giving her evidence alongwith her daughter who was born on account of rape committed upon her by the accused. However, inspite of lengthy cross-examination of prosecutrix nothing adverse could be culled out from her so as to dislodge her credibility and reliability. As such, the application dated 28.2.2025 filed by accused applicant was a futile exercise only to delay the conclusion of trial. In view of the fact that the prosecutrix could not be dislodge in her examination in chief nothing fruitful would be achieved by calling for a DNA report of the child. Apart from above, the said application was not filed at the initial stage i.e. before the deposition of the prosecutrix was recorded, but after the prosecution evidence was over. As such, no illegality can be said to have been committed by Court below in passing the impugned order. It is further submitted by the learned A.G.A. that the DNA test of a child is not to be directed by Court in a routine manner, but only when compelling circumstances exists, as the same affects the child. On the above premise, the learned A.G.A. contends that present application is liable to be dismissed. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State/opposite party-1 and upon perusal of record, this Court finds that the objections raised by learned A.G.A. in opposition to this application are clearly borne out from the record and furthermore the same could not be dislodged by the learned counsel for applicant, with reference to the record. As such, no good ground exists to entertain the present application. In view of above, this application fails and is liable to be dismissed. It is accordingly dismissed. Order Date :- 21.4.2025 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad