Neutral Citation No. - 2025:AHC:129290 Court No. - 79 Case :- APPLICATION U/S 528 BNSS No. - 27690 of 2025 Applicant :- Rizwan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Javed Alam,Nasim Uddin Counsel for Opposite Party :- G.A. Hon'ble Sandeep Jain,J. 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. The present 528 BNSS application has been filed to quash the charge sheet dated 09.02.2025, cognizance order dated 05.05.2025 as well as entire proceeding of Special Case No.63 of 2025 (State Vs. Sameer and others) arising out of Case Crime No. 13 of 2025, under Sections 137 (2), 64(1) B.N.S. and 3/4 POCSO Act, Police Station- Khajuriya, District-Rampur now pending in the court of Special Judge (POCSO Act), Rampur. 3. Learned counsel for the applicant submits that during investigation no evidence was found against the applicant and as such Investigating Officer had not submitted the charge sheet against the applicant but inspite of this, trial Court summoned the applicant under Sections 137 (2), 64(1) B.N.S. and 3/4 POCSO Act, which is illegal. Learned counsel for the applicant further submits that from the perusal of the statement of victim, it is evident that she has not mentioned that she was raped by the applicant. Learned counsel for the applicant further submits that there is a matrimonial dispute between the family of the applicant and the victim and due to this, applicant has been falsely implicated in this case. 4. Per contra, learned A.G.A. has opposed the above prayer and submitted that prima facie sufficient material is on record against the applicant to summon him for the alleged offence. As such, no indulgence be granted by this Court in favour of applicant. 5. I have heard learned counsel for the parties and perused the record. 6. From the perusal of First Information report, it is evident that there is allegation against the applicant that he was an accomplice of accused Sameer in kidnapping the victim and thereafter there is also allegation that applicant raped the victim. After victim was recovered she again in her statement under Section 183 BNSS reiterated above facts and have specifically mentioned that she was raped by Sameer and Rizwan. 7. It is well settled that at this stage the defence evidence of the accused is not to be considered. If, on the basis of evidence available in the case diary, prima facie any offence appears to be made out against the accused then he can be summoned to face trial. Since trial Court has, in the above facts and circumstances, found sufficient prima facie evidence against applicant, as such, he has been summoned under Sections 137 (2), 64(1) B.N.S. and 3/4 POCSO Act alongwith the accused Sameer. 8. It has been held by the Constitution Bench of Apex Court in the case of Dharam Pal & Ors. Vs. State of Haryana 2013 AIR SCW 4491 that upon submission of police report under Section 173(2) Cr.P.C. the Magistrate can disagree with it and act on the basis of protest petition that may be filed or he may, issue process and summon the accused. Therefore, if on being satisfied that a case had been made out, proceed against the persons named in the police report and proceed to try the said persons. 9. It was also submitted that no injury was found on the private parts of the victim but that is not mandatory for proving the offence of rape. 10. In view of above facts and circumstances and the law laid down by the Apex Court, in my opinion, no illegality has been committed by the Court below, in summoning the accused on the basis of evidence available in the case diary. As such, the present application under Section 528 BNSS is liable to be dismissed. 11. Accordingly, the application under Section 528 BNSS is dismissed. Order Date :- 1.8.2025 Imtiyaz Digitally signed by :- IMTIYAZ AHMAD High Court of Judicature at Allahabad