# Shishir Gupta v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-05
- **Case number:** Application U/S 482. No. 45380 of 2023
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shishir-gupta-v-state-of-u-p-anr-51532
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202, 202(1)
& 482 - Indian Penal Code, 1860 -
Sections 328 & 376-D - Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 5-G & 6: - Application
under Section 482 Cr.P.C. - for quashing the
summoning order as well as the entire criminal
proceedings - complaint case - under Sections
376D IPC and Sections 5G/6 of the POCSO Act -
victim alleges repeated sexual assault by the
applicant from 2015 to 2020 and again in 2023,
supported by her St.ment u/s 200 Cr.P.C. and
corroborated by two witnesses u/s 202 Cr.P.C. -
Trial court being found prima facie evidence and
issued a summoning order - applicant
contended that the complaint is fabricated due
to business rivalry and highlights inconsistencies
such as the complainant's refusal to undergo
timely
medical
examination,
lack
of
corroborative medical evidence, vague witness
St.ments,
absence
of specific
dates
and
locations, and failure to raise alarm or report the
alleged incidents over several years - he also
argues procedural lapses in the summoning
order and trial court did not examine the matter
u/s 202(1) Cr.P.C. knowing that the applicant
was residing beyond the jurisdiction of court -
Court finds that, trial court while initially
summoning the applicant failed to consider key
procedural and evidentiary lapses, including the
absence of any reference to the medical report
in the complaint, lack of injuries noted in the
report and the complainant's refusal to undergo
a court-directed medical examination without
3 All. Shishir Gupta Vs. State of U.P. & Anr.
1119
any coercion - Additionally, the Court did not
conduct a mandatory inquiry under Section
202(1) Cr.P.C. despite the applicant residing
outside its jurisdiction, and the complainant had
not reported the alleged incidents spanning
several years to any authority or family - Given
these deficiencies, the Court held that the
summoning order against the applicant to be
unsustainable and set - with clarification that
this order does not affect the summoning of coaccused.
(Para -17, 18, 19, 20, 21, 22, 23, 24, 26)

Application Partly allowed. (E-11)

List of referred Cases: -

## Text

1118 INDIAN LAW REPORTS ALLAHABAD SERIES
citations relied upon by the learned counsel
for the applicants in Mohabbat's case
(supra) and Hayyat,s case (supra) would
not be applicable as in the said cases, the
above noticed principles laid down by
Hon'ble Supreme Court in the case of State
of Madhya Pradesh Vs. Laxmi Narayan
and others, 2019(5) SCC 688 had not been
noticed.

15. Now while reverting to the facts
of the case in hand, this Court finds that as
per prosecution, the applicants were
carrying acid with them and caused serious
burn injuries to Sachin, Pradeep and
Praveen and the manner of crime as
narrated by the complainant Rishipal in the
FIR is horrendous as they came to the shop
of victims and threw acid on them. Further,
this is a case where the applicant accused
have given their own version relating to the
occurrence as a cross case bearing Case
Crime No. 456A of 2010 under Section
323, 324 326 IPC, Police Station Nai
Mandi, District Muzaffar Nagar lodged at
their instance for having suffered injuries at
the hands of complainant etc., is also
pending adjudication.

16. Consequently, considering the
facts and circumstances of this case, this
Court has no hesitation in holding that the
sole ground of compromise raised by the
applicants in this petition for quashing of
the criminal proceedings is rejected.

17. Resultantly, without meaning any
expression of opinion on the merits of the
case, the application under Section 482
Cr.P.C. is dismissed.
----------
(2024) 3 ILRA 1118
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.01.2024

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Application U/S 482. No. 45380 of 2023

Shishir Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ajay Senger

Counsel for the Opposite Parties:
G.A., Sri Ajay Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 200, 202, 202(1)
& 482 - Indian Penal Code, 1860 -
Sections 328 & 376-D - Protection of
Children from Sexual Offences (POCSO)
Act, 2012 - Sections 5-G & 6: - Application
under Section 482 Cr.P.C. - for quashing the
summoning order as well as the entire criminal
proceedings - complaint case - under Sections
376D IPC and Sections 5G/6 of the POCSO Act -
victim alleges repeated sexual assault by the
applicant from 2015 to 2020 and again in 2023,
supported by her St.ment u/s 200 Cr.P.C. and
corroborated by two witnesses u/s 202 Cr.P.C. -
Trial court being found prima facie evidence and
issued a summoning order - applicant
contended that the complaint is fabricated due
to business rivalry and highlights inconsistencies
such as the complainant's refusal to undergo
timely
medical
examination,
lack
of
corroborative medical evidence, vague witness
St.ments,
absence
of specific
dates
and
locations, and failure to raise alarm or report the
alleged incidents over several years - he also
argues procedural lapses in the summoning
order and trial court did not examine the matter
u/s 202(1) Cr.P.C. knowing that the applicant
was residing beyond the jurisdiction of court -
Court finds that, trial court while initially
summoning the applicant failed to consider key
procedural and evidentiary lapses, including the
absence of any reference to the medical report
in the complaint, lack of injuries noted in the
report and the complainant's refusal to undergo
a court-directed medical examination without
3 All. Shishir Gupta Vs. State of U.P. & Anr.
1119
any coercion - Additionally, the Court did not
conduct a mandatory inquiry under Section
202(1) Cr.P.C. despite the applicant residing
outside its jurisdiction, and the complainant had
not reported the alleged incidents spanning
several years to any authority or family - Given
these deficiencies, the Court held that the
summoning order against the applicant to be
unsustainable and set - with clarification that
this order does not affect the summoning of coaccused.
(Para -17, 18, 19, 20, 21, 22, 23, 24, 26)

Application Partly allowed. (E-11)

List of referred Cases: -

1. Vijay Dhanuka & ors.Vs Najima Mamtaj &
ors., (2014) 14 SCC 638,

2.
Birla
Corporation
Limited
Vs
Adventz
Investments and Holdings Limited & ors., 2019
AIR (SC) 2390,

3. Dhruvaram Murlidhar Sonar Vs St. of
Maharashtra - (2019) 18 SCC 191,

4. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426,

5. [Inder Mohan Goswami Vs St. of Uttaranchal,
(2007) 12 SCC 1 ,

6. Pramod Suryabhan
Pawar VS St. of
Maharashtra & anr., (2019) 9 SCC 608,

7. Pepsi Foods Ltc. & anr.Vs Special Judicial
Magistrate & ors., (1998) 5 SCC 749,

8. National Bank of Oman Vs Barakara Abdul
Aziz & anr., (2013) 2 SCC 488,

9. Chhote Lal Vs St. of UP & anr.(Application u/s
482
No.
39702
of
2017,
decided
on
18.04.2019).

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Heard Sri Ajay Sengar, learned
counsel for the applicant, Sri Ajay Singh,
learned counsel for the complainant and
learned AGA for the State.

2. Present application has been filed
by the applicant under Section 482 Cr.P.C.
praying for quashing the entire proceedings
of Complaint Case No. 0009 of 2023,
arising out of Criminal Case No. 0164 of
2023 (Smt. Vibha Prajapati vs. Shishir
Gupta & Others) under Sections 376D of
IPC and Section 5G/6 of the POCSO Act,
2012, Police Station Kotwali Orai, District
Jalaun,
pending
before
the
learned
Additional
District
&
Sessions
Judge/Special Judge (POCSO Act), Jalaun
at Orai.

3. Opposite party no. 2 filed a
complaint against the applicant and other
persons under Sections 328 and 376 of IPC
and Section 5/6 of the POCSO Act, 2012
Police Station Kotwali Orai, District
Jalaun.

4. The allegations in the complaint are
summarised thus:

4.1. The applicant, who was
working as a Contractor, opened an office
in the name and style of S. K. Enterprises
in the house of one R.S. Gupta at Tulsi
Nagar, Orai, District Jalaun. Opposite party
no. 2 came to know that there was a
vacancy of a Clerk and a Stenographer in
the office of the applicant. She met the
applicant in the year 2015 for such job and
was asked to approach after one week. She
was offered a job of Clerk in the office of
the applicant on monthly payment of Rs.
5000/-.

4.2.
After
15-20
days,
the
applicant called the complainant at his
office at 9:00 PM. When she reached the
office at around 8:30 PM, she found the
applicant and one Ajit Singh to be present
1120 INDIAN LAW REPORTS ALLAHABAD SERIES
there. She was offered a cup of coffee by
the applicant. After consuming it, she lost
her
senses.
When
she
regained
consciousness, she found that there were no
cloths on her body. The applicant and Ajit
Singh had committed rape with her.

4.3.
When
the
complainant
informed that she will file a complaint
against them with the police, they showed
her an obscene video and threatened to
make this video public in case she filed any
complaint or told her family about this
incident. The applicant and Ajit Singh
raped her on several occasions after this,
under the pretext of leaking the obscene
video.

4.4.
During
the
nationwide
lockdown in 2020, the applicant closed his
office
at
Orai.
There
was
no
communication between the applicant and
the complainant during 2020 to 2023. In
the month of September 2023, the applicant
called the complainant and asked her to
work with him again, but she refused. The
applicant
showed
some
indecent
photographs
and
video
to
her
and
threatened to make these photos and video
public in Orai and send it to her family
members if she does not accompany him.

4.5. She became very frightened.
She was taken to an unknown house by the
applicant where Sardar Ajit Singh was
already present. They raped her without her
consent. Thereafter they took her in the car
and after some distance removed her and
left from there saying that they have
opened their office in Noida. She has to
come there whenever called otherwise she
would have to face serious consequences.
Firoz Khan and Ghanshyam were passing
from there at that time. Upon enquiring
with her, she narrated the entire incident to
them.

5. Sri Ajay Sengar, Learned counsel
for the applicant submitted that:

5.1. One Ritesh Gupta, resident of
Madhya Pradesh is also a Railway
Contractor and has business rivalry with
the applicant. He felt enemity with the
applicant. He planned to implicate the
applicant in this heinous crime. The
complainant is managed by the gang of
false criminal litigations.

5.2. After recording the statement
of the complainant under Section 200 of
Cr.P.C., the Court concerned directed the
Chief Medical Officer, Jalaun by order
dated 04.10.2023, to medically examine her
and submit his report. But the complainant
refused to undergo internal and external
medical examination on 18.10.2023. The
Chief Medical Officer, Jalaun submitted his
report to the Court concerned about the
refusal made by the complainant on
20.10.2023.

5.3. The complainant produced
her medical report before the Court
concerned on 7.11.2023, stating that she
could not get herself medically examined
earlier because she was under mensuration
period and one month had passed since the
alleged occurance so she did not undergo
medical
examination.
She
was
also
hospitalised from 7.10.2023 and 8.10.2023.

5.4. Two witnesses produced and
mentioned by the complainant in her
complaint, did not disclose any date, time
and place of occurrence. They also did not
state anything about the knowledge of the
business and status of the applicant.

5.5. Both the witnesses are
chance witnesses and the Learned Court
concerned did not make any attempt to
examine their veracity and, therefore, their
evidence cannot be relied upon. Moreover,
PW-2-Divesh Diwaker stated that the entire
3 All. Shishir Gupta Vs. State of U.P. & Anr.
1121
incident was narrated to him by the
complainant herself.

5.6. The complaint was filed on
30.09.2023.
A
medical
report
dated
12.09.2023 i.e. prior to the date of filing of
the complaint, was filed by the complainant
subsequently. This medical report was
prepared at Jhansi and the complications
referred to in the said report do not
corroborate the version of rape with the
complainant. Moreover, the complainant
did not give any reference of her medical
examination dated 12.09.2023 in her
complaint. Therefore, there was no medical
evidence
on
record
which
could
demonstrate that the complainant was raped
by the applicant.

5.7. Though the complainant
stated that since 2015, the applicant had
committed rape with her, she did not raise
any alarm and did not make any complaint
thereto to any of the authority or to her
family members. She remained silent about
the incident.

5.8. Learned Court concerned
before passing the summoning order did
not examine the matter under Section
202(1) of Cr.P.C. that the applicant was
residing beyond its jurisdiction.

5.9. There is no evidence in the
form of video clip, mobile clip or any
photograph which could demonstrate that
the applicant committed rape with the
complainant, as alleged. No date, time and
place of occurrence had been mentioned by
the complainant although it is alleged that
the applicant continued to rape her for over
a period of more than five years.

5.10. The applicant never resided
at Orai. He does not know co-accused
Sardar Ajit Singh as he is a resident of
District Faizabad.

6. To buttress his arguments, learned
counsel for the applicant relied upon the
judgments of the Supreme Court in Pepsi
Foods Ltc. and Another vs. Special
Judicial Magistrate and Others, (1998) 5
SCC 749 and National Bank of Oman vs.
Barakara Abdul Aziz and Another,
(2013) 2 SCC 488 and a judgment of this
Court in Chhote Lal vs. State of UP &
Another (Application u/s 482 No. 39702 of
2017, decided on 18.04.2019).

7. It is also submitted by learned
counsel for the applicant that the turnover
of the applicant is in crores and his total
income assessed under the Income-tax is
Rs. 3,35,87,780/- in the Assessment Year
2023-24. The applicant had paid income
tax of Rs. 1,05,92,058/- on this income. It
is also submitted that this is also one of the
reasons to falsely implicate the applicant in
this case to fetch money from him.

8. Per contra, learned AGA and
learned
counsel
for
the
complainant
submitted that:

8.1. The complainant does not
know any Ritesh Gupta, as alleged by the
applicant. Therefore, the allegations made
by the applicant are incorrect. The fact of
the case and the evidence adduced by the
complainant and the witnesses are subject
to trial. The Court will arrive at a rightful
conclusion only on the basis of evidence
produced by the complainant during the
trial. It is also stated that at this stage, the
defence of the applicant cannot be taken
into consideration.

8.2. The complainant during her
statement under Section 200 of Cr.P.C.,
consistently corroborated the facts of the
incident. Apart from her, two witnesses,
who were passing through the area where
the applicant left her after committing her
rape, have also during their statement under
1122 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 202 Cr.P.C. corroborated the case
of the complainant.

8.3. PW-1-Ghanshyam, during
his statement under Section 202 Cr.P.C.
stated that two persons dropped a girl from
their Car and threatened her. He enquired
from the complainant what happened. She
informed that two persons, namely, the
applicant-Shishir
Gupta
and
another
person, Ajit Singh had committed rape with
her. Prior to this also, they had committed
rape with her at several times.

8.4. The same statement was
given by another witness, namely, PW-2
Divesh Diwaker. There is no denial of
statements of the complainant and the
witnesses by the applicant.

8.5. The medical report produced
by the complainant before the learned
Court concerned is not fabricated as the
medical report had been issued by the
Government Hospital.

9. There is an allegation against the
applicant that in the year 2015, he provided
a job to the complainant in his office. After
15-20 days, lured her in his office on
pretext of some official work. He offered a
cup of coffee to her with some intoxicated
substance. She lost her senses after
consuming that coffee. When she regained
consciousness, she found herself naked.
She apprehended that the applicant and
another accused had committed rape with
her. When the complainant informed them
that she will file a complaint against them,
they showed her an obscene video and
threatended her that if any complaint is
lodged with the police or if she informed
her family about the incident, they would
make the video public. Under the threat of
this video, the applicant and another person
continued to rape her several times later.

10. In September 2023, the applicant
called the complainant to work with him
again but she refused. The applicant then
showed some indecent photographs and
video and threatened her that if she would
not come with him, he would make the
photographs and video public in Orai and
would also send them to her family.

11. She got frightened. She was taken
to an unknown house by the applicant
where Sardar Ajit Singh was already
present. They raped her without her
consent. They took her in a car and after
some distance removed her and left her
there. Firoz Khan and Ghanshyam were
passing from there at that time. Upon
enquiring, she narrated the entire incident
to them.

12. The Hon'ble Supreme Court in
Pramod Suryabhan Pawar VS State of
Maharashtra and another, (2019) 9 SCC
608 has considered the principles, scope,
and ambit of the powers of the Court under
Section 482 Cr.P.C. and held that:

6. Section 482 is an overriding
section which saves the inherent powers of
the court to advance the cause of justice.
Under Section 482 the inherent jurisdiction
of the court can be exercised (i) to give
effect to an order under CrPC; (ii) to
prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends
of justice. The powers of the court under
Section 482 are wide and the court is
vested with a significant amount of
discretion to decide whether or not to
exercise them. The court should be guarded
in the use of its extraordinary jurisdiction to
quash an FIR or criminal proceeding as it
denies the prosecution the opportunity to
establish its case through investigation and
evidence. These principles have been
3 All. Shishir Gupta Vs. State of U.P. & Anr.
1123
consistently followed and reiterated by this
Court. In Inder Mohan Goswami v. State of
Uttaranchal [Inder Mohan Goswami v.
State of Uttaranchal, (2007) 12 SCC 1 :
(2008) 1 SCC (Cri) 259] , this Court
observed : (SCC p. 10, paras 23-24):

"23. This Court in a number of
cases has laid down the scope and ambit of
courts' powers under Section 482 CrPC.
Every High Court has inherent powers to
act ex debito justitiae to do real and
substantial justice, for the administration of
which alone it exists, or to prevent abuse of
the process of the court. Inherent power
under Section 482 CrPC can be exercised:

(i) to give effect to an order under
the Code;

(ii) to prevent abuse of the
process of the court, and

(iii) to otherwise secure the ends
of justice.

24.
Inherent
powers
under
Section 482 CrPC though wide have to be
exercised sparingly, carefully and with
great caution and only when exercise is
justified by the tests specifically laid down
in this section itself. Authority of the court
exists for the advancement of justice. If any
abuse of the process leading to injustice is
brought to the notice of the court, then the
court would be justified in preventing
injustice by invoking inherent powers in
absence of specific provisions in the
statute."

7. Given the varied nature of
cases that come before the High Courts,
any strict test as to when the court's
extraordinary powers can be exercised is
likely to tie the court's hands in the face of
future injustices. This Court in State of
Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426] conducted a detailed study
of the situations where the court may
exercise its extraordinary jurisdiction and
laid down a list of illustrative examples of
where quashing may be appropriate. It is
not necessary to discuss all the examples,
but a few bear relevance to the present
case. The Court in Bhajan Lal [State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] noted that
quashing may be appropriate where: (SCC
pp. 378-79, para 102)

"102.
...
(1)
Where
the
allegations made in the first information
report or the complaint, even if they are
taken at their face value and accepted in
their entirety do not prima facie constitute
any offence or make out a case against the
accused.

(2) Where the allegations in the
first information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2).
***

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

8. In deciding whether to exercise
its jurisdiction under Section 482, the Court
does not adjudicate upon the veracity of the
facts alleged or enter into an appreciation
of competing evidence presented. The
limited question is whether on the face of
the FIR, the allegations constitute a
cognizable offence. As this Court noted in
Dhruvaram Murlidhar Sonar v. State of
Maharashtra [Dhruvaram Murlidhar Sonar
v. State of Maharashtra, (2019) 18 SCC
191 : 2018 SCC OnLine SC 3100] ,
(Dhruvaram Sonar) : (SCC para 13)
1124 INDIAN LAW REPORTS ALLAHABAD SERIES

"13. It is clear that for quashing
the proceedings, meticulous analysis of
factum of taking cognizance of an offence
by the Magistrate is not called for.
Appreciation of evidence is also not
permissible in exercise of inherent powers.
If the allegations set out in the complaint
do not constitute the offence of which
cognizance has been taken, it is open to the
High Court to quash the same in exercise of
its inherent powers."

13. In Pepsi Foods Ltd. And
Another vs. Special Judicial Magistrate
And Other (supra), the Apex Court
observed in paragraph 28, as under:

"28. Summoning of an accused in
a criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. it is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the magistrate summoning the accused
must reflect that he has applied his mind to
the facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused."

14. In National Bank of Oman vs.
Barakara Abdul Aziz And Another
(supra), the Apex Court, further explaining
the text, observed as under in paragraphs 9:

"9. The duty of a Magistrate
receiving a complaint is set out in Section
202 of the Cr.P.C. and there is an
obligation on the Magistrate to find out if
there is any matter which calls for
investigation by a criminal court. The scope
of enquiry under this Section is restricted
only to find out the truth or otherwise of the
allegations made in the complaint in order
to determine whether process has to be
issued or not. Investigation under Section
202 of the Cr.P.C. is different from the
investigation contemplated in Section 156
as it is only for holding the Magistrate to
decide whether or not there is sufficient
ground for him to proceed further. The
scope of enquiry under Section 202 of the
Cr.P.C. is, therefore, limited to the
ascertainment of truth or falsehood of the
allegations made in the complaint:

(i) on the materials placed by the
complainant before the Court;

(ii) for the limited purpose of
finding out whether a prima facie case for
issue of process has been made our; and

(iii) for deciding the question
purely from the point of view of the
complainant without at all adverting to any
defence that the accused may have."

15. In Birla Corporation Limited vs.
Adventz
Investments
and
Holdings
Limited & Others, 2019 AIR (SC) 2390,
the Apex Court observed as under:

31. Under the amended subsection (1) to Section 202 Cr.P.C., it is
obligatory upon the Magistrate that before
summoning the accused residing beyond its
jurisdiction, he shall enquire into the case
himself or direct the investigation to be
made by a police officer or by such other
3 All. Shishir Gupta Vs. State of U.P. & Anr.
1125
person as he thinks fit for finding out
whether or not there is sufficient ground for
proceeding against the accused.

32. By Cr. P.C. (Amendment)
Act, 2005, in Section 202 Cr.P.C. of the
Principal Act with effect from 23.06.2006,
in sub-section (1), the words "...and shall,
in a case where accused is residing at a
place beyond the area in which he exercises
jurisdiction..." were inserted by Section 19
of
the
Criminal
Procedure
Code
(Amendment) Act, 2005. In the opinion of
the legislature, such amendment was
necessary as false complaints are filed
against persons residing at far off places in
order to harass them. The object of the
amendment is to ensure that persons
residing at far off places are not harassed
by filing false complaints making it
obligatory for the Magistrate to enquire.
Notes on Clause 19 reads as under:-

"False
complaints
are
filed
against persons residing at far off places
simply to harass them. In order to see that
the innocent persons are not harassed by
unscrupulous persons, this clause seeks to
amend sub-section (1) of Section 202 to
make it obligatory upon the Magistrate that
before summoning the accused residing
beyond his jurisdiction he shall enquire into
the case himself or direct investigation to
be made by a police officer or by such
other person as he thinks fit, for finding out
whether or not there was sufficient ground
for proceeding against the accused."

33. Considering the scope of
amendment to Section 202 Cr.P.C. in Vijay
Dhanuka and Others vs. Najima Mamtaj
and Others, (2014) 14 SCC 638, it was held
as under:-

"12. ....The use of the expression
"shall" prima facie makes the inquiry or the
investigation, as the case may be, by the
Magistrate mandatory. The word "shall" is
ordinarily mandatory but sometimes, taking
into account the context or the intention, it
can be held to be directory. The use of the
word "shall" in all circumstances is not
decisive. Bearing in mind the aforesaid
principle, when we look to the intention of
the legislature, we find that it is aimed to
prevent innocent persons from harassment
by
unscrupulous
persons
from
false
complaints. Hence, in our opinion, the use
of
the
expression
"shall"
and
the
background and the purpose for which the
amendment has been brought, we have no
doubt in our mind that inquiry or the
investigation, as the case may be, is
mandatory before summons are issued
against the accused living beyond the
territorial jurisdiction of the Magistrate."

Since the amendment is aimed to
prevent
persons
residing
outside the
jurisdiction of the court from being
harassed, it was reiterated that holding of
enquiry is mandatory. The purpose or
objective behind the amendment was also
considered by this Court in Abhijit Pawar
v. Hemant Madhukar Nimbalkar and
Another (2017) 3 SCC 528 and National
Bank of Oman v. Barakara Abdul Aziz and
Another (2013) 2 SCC 488."

16. An order passed by the Court,
summoning the accused to face trial, must
reflect that it has applied its mind to the
facts of the case and the law applicable
thereto. The Court cannot act merely
because a complaint had been made and
two witnesses in support of the allegations
are produced before it. It has to examine
the nature of allegations made in the
complaint and the evidence, both oral and
documentary, in support thereof and
whether that would be sufficient for the
complainant to succeed in bringing home
charge against the accused. It is not that the
Magistrate is a silent spectator at the time
of recording of preliminary evidence before
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
summoning of the accused. Magistrate has
to carefully scrutinise the evidence brought
on record and may even himself put
questions to the complainant and his
witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused.

17.

Perusal
of
the
impugned
summoning order goes to show that
considering the material evidence as
available on record, the Learned Court
opined that there was sufficient prima facie
evidence about the commission of the
crime by the applicant as alleged by the
complainant in her complaint. The Court
therefore summoned the applicant to face
the trial.

18. The Learned Court completely
lost sight of the fact that no date and time
of incident were mentioned by the
complainant. She made allegations that she
was subjected to rape by the applicant and
another accused for a long period, i.e. from
2015 to 2020 and in the year 2023. But she
did not mention the date and time of any of
such incidents in her complaint. The
witnesses of the complainant stated before
the court merely on the basis of the
information given by the complainant.

19. While passing the impugned
order, the Learned Court completely
ignored the fact that no refrence of the
medical report (paper no. 18 kha) was
made by the complainant in her complaint.
This certificate was issued by District Male
Hospital, Jhansi on 12.09.2023. In this
medical certificate, no injury on the person
of the complainant was found which can
demonstrate that she was subjected to gang
rape. Pertinent to note that the Court
concerned, after recording the statement of
the complainant under section 200 Cr.P.C.,
directed the Chief Medical Officer, Jalaun
at Orai to conduct medical examination of
the complainant, but she refused to undergo
for her medical examination. She stated
before the Medical Officer that she does
not want to get her internal and external
medical examination done. There was no
pressure upon her to not get her medical
examination done.

20. Thereafter, she moved an
application before the Court concerned
stating therein that when she appeared
before the medical officer Orai for her
medical examination, she was undergoing
monthly menstruation cycle and since a
month had passed since the date of the
incident, therefore she she did not consent
to get her medical examination done. This
fact was not informed by her to the Medical
Officer.

21. In the absence of any medical
evidence to corroborate the allegations
made by the complainant, the Court
erroneously arrived at a conclusion that,
prima facie, there was evidence of
committing gang rape by the applicant and
other accused person with the complainant.

22. The Learned Court also failed to
conduct an enquiry under Section 202(1) of
Cr.P.C. to examine the veracity of
prosecution witnesses. Since the applicant
is a resident of District Ghaziabad and his
address of Ghaziabad was also mentioned
by the complainant in her complaint,
therefore,
to
ascertain
whether
the
concerned
Court
has
jurisdiction
to
entertain the complaint, an enquiry under
Section 202(1) of Cr.P.C. was mandatory to
be conducted by the court.

23. It is also noteworthy that as with
regard to the allegation made by the
3 All. M/s Jaypee Infratech Ltd. Vs. M/s EHBH Services Pvt. Ltd. & Anr.
1127
complainant that she was subjected to rape
by the applicant for a long duration (i.e.
from 2015 to 2020 and in September 2023),
she neither raised any alarm to that effect
nor informed her parents or other family
members. She never approached the local
authorities to file a complaint about it.
Therefore, it appears that only for the
purpose of harassing the applicant, false
and concocted allegations are levelled
against him by the complainant.

24. In view of the discussion made
above, the application is partly allowed.
Summoning order dated 10.11.2023 under
Section 376D IPC and 5G/6 POCSO Act,
2012 passed by Additional District and
Sessions Judge/ Special Judge, Jalaun at
Orai in Complaint Case No.0009 of 2023
arising out of criminal case no.0164 of
2023 (Smt. Vibha Prajapati Vs Shishir
Gupta and others) to the extent it summons
the applicant is hereby set aside.

25. No order as to cost.

26. It is made clear that by this order,
summoning of non-applicant Sardar Ajit
Singh, who is also an accused and have
been summoned, has not been set aside.
----------
(2024) 3 ILRA 1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Civil Misc. Arbitration Application No. 2 of
2022
With
Civil Misc. Arbitration Application No. 5 of 2023

M/s Jaypee Infratech Ltd. ...Applicant
Versus
M/s EHBH Services Pvt. Ltd. & Anr.
 ...Opp. Parties

Counsel for the Applicant:
Sri Rohit Gupta, Sri Kashif Zaidi, Sri Kali
Gupta (Azad)

Counsel for the Opp. Parties:
Sri Sudhanshu Kumar

Arbitration and Conciliation Act, 1996 -
Sections 2(1)(e), 11, 29A(4),(5)&(6) - Definition
of "Court" - Jurisdiction for Extension of Arbitral
Mandate and Substitution of Arbitrator -
Interpretation of "unless the context otherwise
requires" - Conflict with Section 11 - Judicial
Hierarchy.

Applications under Section 29A(4)&(5) of the
Arbitration and Conciliation Act, 1996 were filed
seeking extension of the mandate of the Arbitral
Tribunal in two separate domestic arbitrations.
In the first (ARBT No. 2 of 2022), disputes arose
from rent agreements for dhaba facilities along
the Yamuna Expressway; arbitration invoked in
2019; proceedings delayed due to negotiations,
Covid-19, objections, and applications; opposite
parties refused mutual extension under Section
29A(3). In the second (ARBT No. 5 of 2023),
disputes related to a construction contract with
U.P. PWD; pleadings completed in 2022;
mandate expired in 2023; respondent refused
consent for extension.

The Court framed the question: Whether
powers
under
Sections
29A(4),(5)&(6)
in
domestic arbitration are exercisable exclusively
by the High Court (irrespective of ordinary
original civil jurisdiction or appointment under
Section
11),
or
by
the
Principal
Civil
Court/Commercial Court as per Section 2(1)(e).

Applicants contended that "Court" in Section
29A must be read contextually with Section 11;
power to substitute under Section 29A(6) akin
to appointment; literal application of Section
2(1)(e) leads to conflict/anomaly violating
judicial hierarchy. Opposite parties argued for
strict adherence to Section 2(1)(e); no absurdity
in Principal Civil Court exercising powers;
distinction between appointment (Section 11)
and substitution (Section 29A(6)).