Neutral Citation No. - 2025:AHC:144421 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 30066 of 2025 Applicant :- Yogesh And Another Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajeev Kumar Pandey,Shardendu Mishra Counsel for Opposite Party :- Samarth Sinha,G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Rajeev Kumar Pandey along with Sri Shardendu Mishra, learned counsel for the applicants, who are two in number, Sri Samarth Sinha, learned counsel for the opposite party no.2 and Sri S.K. Singh, learned AGA for the State. 2. A joint statement has been made by the learned counsel for the parties that they do not propose to file any additional affidavit and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is being decided. 3. The case of the applicants is that proceedings under Section 156(3) Cr.P.C. came to be lodged by the opposite party no.2 on 26.06.2023 for the offences under Section 354, 506, 452, 376/511 IPC read with Section 3/7 of the POCSO Act with the allegation that opposite party no.2 is an uneducated simple person, whose marriage solemnized with Smt. Mamta Devi. However, his wife has illicit relationship with the applicants herein and when on 26.05.2023, he received information that his wife has left her two female children at 11:30 am and, thereafter, he approached the applicants requesting him that his wife be allowed to accompany him then, they threatened that now, the opposite party no.2 would have no connection or relationship with his wife. The two children of the opposite party no.2, victims, who are aged about 10 and 12 years, thereafter, apprised the opposite party no.2 that the applicant no.1 often comes to the house of the opposite party no.2 and he proceeds towards the bed room accompanied with the mother and the applicant no.2 is stationed outside the bed room and both the applicants herein exhibit indecent behaviour, gesture and also outraged the modesty of the victims. It is also alleged in the complaint that when the same was resisted by the victims, then they were threatened by appellants by saying that they would make the victims face the music and when the same was complaint to the mother of the victim, being the wife of the opposite party no.2, then, she used to force the victim to be shut their mouth. It is alleged that on 29.05.2023, police complaint was stated to have been sent followed on 05.06.2023 and 19.06.2023 and, thereafter, the proceedings under Section 156(3) Cr.P.C. came to be lodged on 26.06.2023. 4. Post recording of the statement of the complainant under Section 200 Cr.P.C., the victims, who were two in numbers, under Section 202 Cr.P.C., the applicants herein came to be summoned by the court of Additional District & Sessions Judge/Special Judge (POCSO Act), Court No.3, Ghaziabad, under Sections 452, 354, 506 IPC read with Section 7/8 POCSO Act. Thereafter, on 05.03.2025, the charges have been framed against the applicants. 5. Learned counsel for the applicants, questioning the order dated 05.03.2025 of framing the charges, the present application has been preferred. Learned counsel for the applicants has submitted that though in the prayer clause, summoning order has not been challenged but he seeks to challenge the summoning order and the same is incidental to the orders framing the charges. 6. Learned counsel for the applicants has submitted that the summoning order as well as the order dated 05.03.2025 framing of charges cannot be sustained for the simple reason that the applicants have at no point of time have committed the said offence. He submits that there is no iota of evidence to show that any offence had been committed particularly when no date or time has been mentioned in the complaint and further the victims, who are two in numbers, were not subjected to medical legal examination. He submits that had the victim being subjected to medical legal examination then, the same would have surfaced the truth in that regard. He also submits that the applicants have been enlarged on bail by virtue of the order dated 21.01.2025 thus, the order framing the charges cannot be sustained. He also submits that the applicants are innocent and on the basis of tailor made statements under Section 200 and 202 Cr.P.C., the applicants have been summoned, which became the basis of framing of the charges. 7. Learned AGA as well as Sri Samarth Sinha, who appears for the opposite party no.2, submits that the orders, which are being subject matter of challenge cannot be faulted particularly when the offence is alleged to have been committed upon the victims, who are 10 and 12 years old and it is the consistent stand of the victims in their statements, which supports the prosecution theory in the complaint that the victims used to protest against the said offences and activities of the applicants to their mother but they were threatened on account whereof they disclosed the facts to the opposite party no.2 and thereafter, the proceedings stood triggered. He further submits that the orders framing the charges cannot be said to be bad in eyes of law. 8. I have heard the submissions so made across the bar and perused the record carefully. 9. Apparently, in the present case at hand, allegation is regarding commission of offences under the above noted Sections by the opposite party no.2, who happens to be the father of the victims, who are two in numbers, being minor, aged about 10 and 12 years against the applicants, wherein not only molestation, outraging of modesty but also threatening was being administered and the said offences were committed not on a single date, but frequently. Allegation is to the effect that the opposite party no.2 is generally stationed outside away from his house and the victims, who happened to be the daughter of the opposite party no.2, used to stay with the mother but the mother had developed intimacy with the applicants and on account whereof it became a matter of routine that the applicants used to regularly visit the house of the opposite party no.2 and offences were committed with the victim. 10. Bearing in mind the fact that the statements of the victim under Section 202 Cr.P.C., who are two in numbers, as well as the statement of the complainant under Section 200 Cr.P.C. are in conformity and consonance and there are no material contradictions or variations viz-a-viz the allegations in the complaint, the case itself becomes triable. 11. Moreover, mere non-subjection of the victim to the medical examination may expose a circumstances for adverse inference but it cannot be a ground to hold that the summoning order and the framing of the charges are suffering from infirmity, as the impact, effect and the ramification of non-subjection of the victims to medical examination would test its own strength when the trial commences post framing of the charges when defence is to be adduced. Moreover, what would be relevant would be the provisions of Section 29 of the Protection of Children from Sexual Offences Act, 2012, which provides for presumption as to certain offences, according to which, when a person is prosecuted for committing or abetting or attempting to commit the offence under Sections 3, 5, 7 and 9 of the Act, the Special Court is to presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The words employed "unless the contrary is proved" marks significance as it pre-supposes conduction of the trial. Since, the allegations contained in the complaint and the statements under Sections 200 and 202 Cr.P.C are prima facie not in variation or contradiction thus, the case becomes triable and is liable to be proceeded. Accordingly, no good ground is made either for interference with respect to summoning or the order or challenge to the order framing the charges. 12. Accordingly, interference is declined. The application stands consigned to record leaving it open for the applicants to raise all legal and factual issues while contesting the trial. Order Date :- 21.8.2025 Priya Digitally signed by :- PRIYA KUSHWAHA High Court of Judicature at Allahabad