# Shivam Solanki v. The State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-11
- **Case number:** Application U/S 482 No. 24962 of 2021
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-solanki-v-the-state-of-u-p-anr-49098
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323, 504, 506,
427, 386, 376, & 511-Challenge to-charge
sheet
and
summoning
order-
NonCompliance of section 155(2) Cr.P.C.-No
consistency in the version of informant
starting from lodging of the NCR till the
submission of chargesheet-Only in the
statement u/s 164 Cr.P.C., victim, for the
first time, raised her grievance regarding
allegation of attempt of being sexually
assaulted-The police officer investigated
the
matter
without
following
the
procedure as mandated u/s 155(2) of
Cr.P.C.-Moreso, the testimony of the
victim was not of sterling quality to
believe
allegations
made
against
applicant-Though the NCR was lodged but
the entire proceedings were initiated
without taking prior permission of the
concerned Magistrate u/s 155(2) Cr.P.C.,
the
whole
investigation
against
the
applicant is illegal-It is settled proposition
that if the initial action is not in
consonance with law, all subsequent and
consequential
proceedings
would
be
vitiated-Thus, the entire proceedings is
liable to be quashed.(Para 1 to 26)

B. When a non-cognizable offence is
reported to the police, they are not
empowered to investigate the matter and
register an FIR, without compliance of
Section
155(2)
of
Cr.P.C.
without
obtaining
prior
permission
of
the
Magistrate concerned. It is only after
referring the complaint to the concerned
Magistrate
and
taking
permission,
thereafter,
they
can
investigate
the
matter. The statutory safeguards must be
strictly followed, since they are conceived
in public interest and as a guarantee
9 All. Shivam Solanki Vs. The State of U.P. & Anr.
659
against
frivolous
and
vexatious
investigation.(Para 9 to 14)

The application is allowed. (E-6)

List of Cases cited:

## Text

658 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances is totally unwarranted. The
case of the petitioners is not to be treated as
a new case. The State Government has vide
order dated 18.5.2017 (Annexure-15 to the
writ petition) already taken a decision to
take the petitioners' Institution under grantin-aid. The said order is very much in
existence and has not been rescinded.
Admittedly, vide orders dated 21.11.2019
and 16.10.2020 (Annexures 30 & 31), the
State Government has taken institutions in
grant-in-aid
which
are
similarly
circumstanced as the petitioners' institution
and governed by the Social Welfare
Department. There is no reason for the
State Government to discriminate against
the petitioners and refuse the financial
approval having granted the administrative
approval as far back as on 18.5.2017.

7. In view of the above, the writ
petition succeeds and is allowed. The order
dated 17.12.2020 passed by the State
Government (Annexure 26 to the writ
petition) is set aside. A writ of mandamus
is issued to the respondents to accord
financial approval and release the grant for
payment of salary to the teaching and non
teaching staff of the petitioners' institution
by passing appropriate orders in this regard
within a period of 45 days from service of
certified copy of the orders.
----------
(2022) 9 ILRA 658
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 24962 of 2021

Shivam Solanki ...Applicant
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Chandrachud Pandey, Sri Sunil Gupta,
Sri Anil Kumar Srivastava, Sr. Adv.

Counsel for the Respondents:
Govt. Advocate, Sri Ishir Sripat

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323, 504, 506,
427, 386, 376, & 511-Challenge to-charge
sheet
and
summoning
order-
NonCompliance of section 155(2) Cr.P.C.-No
consistency in the version of informant
starting from lodging of the NCR till the
submission of chargesheet-Only in the
statement u/s 164 Cr.P.C., victim, for the
first time, raised her grievance regarding
allegation of attempt of being sexually
assaulted-The police officer investigated
the
matter
without
following
the
procedure as mandated u/s 155(2) of
Cr.P.C.-Moreso, the testimony of the
victim was not of sterling quality to
believe
allegations
made
against
applicant-Though the NCR was lodged but
the entire proceedings were initiated
without taking prior permission of the
concerned Magistrate u/s 155(2) Cr.P.C.,
the
whole
investigation
against
the
applicant is illegal-It is settled proposition
that if the initial action is not in
consonance with law, all subsequent and
consequential
proceedings
would
be
vitiated-Thus, the entire proceedings is
liable to be quashed.(Para 1 to 26)

B. When a non-cognizable offence is
reported to the police, they are not
empowered to investigate the matter and
register an FIR, without compliance of
Section
155(2)
of
Cr.P.C.
without
obtaining
prior
permission
of
the
Magistrate concerned. It is only after
referring the complaint to the concerned
Magistrate
and
taking
permission,
thereafter,
they
can
investigate
the
matter. The statutory safeguards must be
strictly followed, since they are conceived
in public interest and as a guarantee
9 All. Shivam Solanki Vs. The State of U.P. & Anr.
659
against
frivolous
and
vexatious
investigation.(Para 9 to 14)

The application is allowed. (E-6)

List of Cases cited:
1. St. of M.P. Vs Mahendra @ Golu (2021) 0
Supreme SC 626

2. St. of Har. & ors. Vs Ch. Bhajan Lal & ors.
(1992) Suppl. 1 SCC 335

3. Gangadhar Narayan Nayak @ Gangadhar
Hiregutti Vs St. of Karn. & ors. (2022) 0
Supreme SC 232

4. Tilak Nagar Indus. Ltd & ors. Vs St. of A.P. &
anr.. (2011) 15 SCC 571

5. Lokesh T.R. Vs St. of Karn. (2022) SCC Online
Kar 973

6. St. of Punj. Vs Davinder Pal Singh Bhullar &
ors. (2011) 14 SCC 770.

7. Mangal Prasad Tamoli Vs Narvadeshwar
Mishra (2005) 3 SCC 422

8. Raju Vs St. of M.P. (2008) 15 SCC 133

9. Rai Sandeep @ Deepu Vs St. (NCT of Delhi)
(2012) 8 SCC 21

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Chandrachud Pandey,
Advocate holding brief of Mr. Anil Kumar
Srivastava,
learned
counsel
for
the
applicant, Mr. Ishir Sripat, learned counsel
for the opposite party no.2 and Mr. Amit
Singh Chauhan, learned counsel appearing
for the State as well as perused the entire
material available on record.

2. The present 482 Cr.P.C. application
has been filed to quash the charge sheet
No.57
dated
20.02.2021
and
cognizance/summoning
order
dated
31.03.2021 as well as the entire prosecution
of Criminal Case No.13805 of 2021 (State
vs. Shivam Solanki), arising out of Case
Crime No.504 of 2020, under Sections 323,
504, 506, 427, 386, 376 and 511 IPC,
Police Station-Hariparvat, District-Agra,
pending before the court of Chief Judicial
Magistrate, Agra.

3. Brief facts of the case are that for
the incident dated 26.12.2020 at about
08:00 hrs, NCR was lodged on 27.12.2020
under Sections 323, 504 and 506 IPC
alleging therein that daughter of opposite
party no.2, namely, Riddhi was called by
the applicant at the gate of Ram Nagar
Colony, using unparliamentary language,
when Riddhi objected the same, the
applicant assaulted her. On alarm being
raised by opposite party no.2, persons of
the locality reached there, where upon the
applicant ran away giving threat to kill. On
the NCR, so lodged, the Investigating
Officer investigated the matter, collecting
evidence by means of recording statements,
medical and taking note of broken mobile iphone and converted, the aforesaid NCR
into FIR as is evident from Parcha No.52
dated 31.12.2020. Thus, an FIR was
registered as Case Crime No.504 of 2020,
under Sections 323, 504, 506, 354, 427 of
IPC against the applicant. After registration
of
the
FIR
dated
31.12.2020,
the
Investigating Officer has prepared the fard
of broken mobile, which belongs to injured.
For the first time, on 01.01.2021, the
statements of the complainant and victim
Riddhi under Section 161 Cr.P.C. was
recorded by the Investigating Officer, the
statement of the victim under Section 164
Cr.P.C. was recorded on 06.01.2021.
During investigation, the Investigating
Officer has found that no offence under
Section 354 IPC was made out against the
applicant and, therefore, he has deleted the
660 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid section and added sections 354B
and 386 IPC on the basis of statement of
the victim under Section 164 Cr.P.C. as is
evident from C.D. No.48 dated 06.01.2021.
Thereafter, the second statement of the
complainant, namely, Vishal Wadhwa and
injured, namely, Riddhi Wadhawa under
Section 161 Cr.P.C. were recorded on
03.02.2021. Subsequently, the charge sheet
was submitted on 20.02.2021 against the
applicant under Sections 323, 504, 506,
427, 386, 376, 511 IPC, pursuant to which,
the applicant has been summoned vide
order dated 31.03.2021 in the aforesaid
sections.

4. Learned counsel for the applicant,
before addressing the Court on merit, has
raised a legal submission that Section
155(2) of the Cr.P.C. mandates that no
investigation can be conducted against the
accused in an offence that is noncognizable without the express permission
of the learned Magistrate, therefore, as the
procedure provided under Section 155(2)
Cr.P.C. has not been followed in the present
case prior to lodging of the FIR, which is
mandatory
requirement,
hence,
all
consequential proceedings pursuant to the
initiation of an illegal action would not be
justified in the eyes of law.

5. So far as the merit of the case is
concerned,
learned
counsel
for
the
applicant submits that the applicant has
been falsely implicated in the present case.
Initially, when the NCR was lodged, there
were
only
allegations
of
using
unparliamentary language and beating the
victim and threatening to kill her, whereas
without obtaining permission from the
Magistrate concerned as is mandatory in
under Section 155(2) Cr.P.C., the police has
conducted the investigation and lodged the
FIR. He further submits that there are no
allegation of sexually assaulting the victim
in the version of FIR nor any of the
statements under Section 161 Cr.P.C. It is
for the first time in the statement of the
victim under Section 164 Cr.P.C. that the
allegation of rape has been alleged by the
victim, which appears to be afterthought as
the applicant and victim were students, who
happened to be friends.

6. Learned counsel further submits
that though the incident as alleged is of
26.12.2020 at about 08:00 hrs, the
statement of the victim under Section 164
Cr.P.C. was recorded on 06.01.2021, i.e.
nearly after one month of the incident,
which appears to be tutored one as the
allegation with respect to rape were not in
any statements, which were recorded
earlier. He further submits that prior to
submission of charge sheet, from the
statement of the victim initially recorded on
01.01.2021 till second statement, the story
has been changed every time, therefore, the
entire case appears to be a false one. In
such
circumstances,
continuance
of
proceedings would be abuse of process of
law.
Therefore,
the
chargesheet,
summoning order as well as the entire
proceedings may liable to be quashed.

7. On the other hand, learned AGA as
well as learned counsel for the opposite
party no.2 could not dispute the facts with
respect to mandatory requirement of taking
permission from the Magistrate concerned
prior to initiating investigation as required
under Section 155(2) Cr.P.C. So far as the
merit of the case, learned AGA as well as
learned counsel for the opposite party no.2
submits that in every crime, there is first,
Mens Rea, i.e. intention to commit,
secondly, preparation to commit it, and
thirdly, attempt to commit it and if third
stage, i.e. attempt is successful, then crime
9 All. Shivam Solanki Vs. The State of U.P. & Anr.
661
is complete. From the statements as well as
evidence collected by the Investigating
Officer, offence of attempt to commit rape
has been clearly alleged, therefore, the
charge sheet has been rightly submitted
under Sections 376 and 511 IPC including
other sections also, because preparation to
commit any offence and completion of the
preparation
would
amount
to
actual
commission of the crime. In support of
their submission, they are relied upon the
judgment of the Apex Court in the case of
State of Madhya Pradesh vs. Mahendra
alias
Golu
reported
in
2021
0
Supreme(SC) 626, wherein the Apex Court
has held as under:-

"11. It is a settled preposition of
Criminal Jurisprudence that in every
crime, there is first, Mens Rea (intention to
commit), secondly, preparation to commit
it, and thirdly, attempt to commit it. If the
third stage, that is, ''attempt' is successful,
then the crime is complete. If the attempt
fails, the crime is not complete, but law still
punishes the person for attempting the said
act. ''Attempt' is punishable because even
an unsuccessful commission of offence is
preceded by mens rea, moral guilt, and its
depraving impact on the societal values is
no less than the actual commission."

8. On the cumulative strength of the
aforesaid submissions, learned AGA as
well as learned counsel for the opposite
party no.2 submits that admittedly, though
the offence under Sections 323, 504, 506
IPC wherein the NCR was lodged, is noncognizable
offence,
therefore,
the
investigation without prior permission of
the Magistrate, are liable to be quashed.
However, seeing the case on merits, prima
facie offence under the relevant sections is
made out against the applicant.

9. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

10. Before touching the merit of the
case, it would be appropriate to deal with
legal objection as raised by learned counsel
for the applicant regarding permission of
Magistrate before proceedings with the
investigation for lodging of the FIR in the
offences, which are non-cognizable.

11. It is relevant at this juncture to go
through provisions of Section 155 of
Criminal
Procedure
Code
which
are
reproduced below:-

"Section
155
Cr.P.C.-
Information as to non-cognizable cases
and investigation of such cases:-

(1) When information is given to
an officer in charge of a police station of
the commission within the limits of such
station of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf, and refer the informant to the
Magistrate.

(2)
No
police
officer
shall
investigate a non-cognizable case without
the order of a Magistrate having power to
try such case or commit the case for trial.

(3) Any police officer receiving
such order may exercise the same powers
in respect of the investigation (except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.
662 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) Where a case relates to two or
more offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that the
other offences are non-cognizable."

11. It is abundantly clear from above
provisions of Section 155(2) and 155(3)
Cr.P.C.
that
police
is
competent
to
investigate non cognizable offence with
order
of
Magistrate
and
in
such
investigation the police officer receiving
order of investigation may exercise same
powers in respect of the investigation
(except the power to arrest without
warrant) as an officer in charge of a police
station may exercise in a cognizable case.
Thus is clear that charge sheet submitted by
police in non-cognizable offence after
investigation
made
in
pursuance
of
Magistrate order stands at par with charge
sheet submitted by police in cognizable
offence. Where the first information report
and the accompanying materials do not
disclose the commission of any cognizable
offence justifying an investigation by the
police officer under section 156(1) of the
Code, no investigation of the case can be
carried on without the order of the
Magistrate in view of the mandate of
Section 155(2) of the Code, as has been
held by the Apex Court in the case of State
of Haryana and Ors. vs. Ch. Bhajan Lal
and Ors. reported in 1992 Suppl.(1) SCC
335. The relevant para no.108 of the
aforesaid judgment reads as under:-

"108. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or
the inherent powers under Section 482 of
the Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised
either to prevent abuse of the process of
any Court or otherwise to secure the ends
of justice, though it may not be possible
to lay down any precise, clearly defined
and
sufficiently
channelised
and
inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power should
be exercised.

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 F. I.
R. 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) of the Code.

3. Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
of any offence and make out a case
against the accused.

4. Where, the allegations in the
F.I.R. do not constitute a cognizable
offence but constitute only a noncognizable offence, no investigation is
permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155(2) of the Code.
9 All. Shivam Solanki Vs. The State of U.P. & Anr.
663

5. Where the allegations made in
the F.I.R. or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

6. Where there is an express legal
bar engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/ or where there is a
specific provision in the Code or the
oncerned Act, providing efficacious redress
for the grievance of the aggrieved party.

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."

12. When a non-cognizable offence is
reported to the police, they are not
empowered to investigate the matter and
register an FIR, without compliance of
Section 155(2) of Cr.P.C. without obtaining
prior
permission
of
the
Magistrate
concerned. It is only after referring the
complaint to the concerned Magistrate and
taking permission, thereafter, they can
investigate the matter, as has been held by
the Apex Court in the case of Gangadhar
Narayan Nayak @ Gangadhar Hiregutti
vs. State of Karnataka and Others reported
in 2022 0 Supreme(SC) 232.

13. The Apex Court in the case of
Tilak Nagar Industries Limited and
Others vs. State of Andhra Pradesh and
another reported in (2011) 15 SCC 571,
has held that the statutory safeguards given
under Section 155(2) of the Code must be
strictly followed, since they are conceived
in public interest and as a guarantee against
frivolous and vexatious investigation.

14.

The
proceedings
in
noncognizable offence, cannot be initiated by
the police, by registering an FIR, without at
the outset seeking the nod of the concerned
Magistrate, as has been held in the case of
Lokesh T.R. vs. State of Karnataka
reported in 2022 SCC Online Kar 973. The
relevant para nos.9 and 18 of the aforesaid
judgment reads as under:-

"9. Therefore, when the SHO of
the Police Station receives a report
regarding commission of non-cognizable
offence, it is his duty to enter the substance
of the information in the prescribed book
and refer the informant to the Magistrate
as required under Section 155(1) of Cr. P.C.
Thereafter, the jurisdictional Magistrate is
required to pass an order permitting the
Police Officer to investigate the case as
mandated by the provisions of Section
155(2) of Cr. P.C., stated supra. Unless, the
Police Officer is permitted by an order of
the jurisdictional Magistrate to investigate
the non-cognizable offence, the Police
Officer does not get jurisdiction to
investigate the matter and file a final report
or the charge sheet.

18. ........................ The provision of
Section 155(1) and (2) of Cr. P.C., referred
above make it very much clear that the SHO
of the Police Station on receiving the
information regarding the commission of
non- cognizable offence, his first duty is to
enter or cause to be entered the substance of
such commission in a book maintained by
such Officer and then refer the informant to
the Magistrate. This is the requirement of
Section 155(1) of Cr. P.C. Once the
664 INDIAN LAW REPORTS ALLAHABAD SERIES
requisition is submitted to the Magistrate, it is
for the Jurisdictional Magistrate to consider
the requisition submitted by the SHO of
Police Station and pass necessary order
either permitting the Police Officer to take up
the investigation or reject the requisition.
Section 155(2) of Cr. P.C., specifically
provides that no Police Officer shall
investigate the non-cognizable case without
the order of the Magistrate having power to
try such case or commit such case for trial.
Therefore, passing an "order" by the
Magistrate permitting the Police Officer to
investigate the non- cognizable offence is an
important factor. The word without the order
of the Magistrate appearing in sub- Section
(2) of Section 155 of Cr. P.C., makes it clear
that the Magistrate has to pass an 'order'
which means supported by reasons. On the
other hand, in number of cases, the
Jurisdictional Magistrates are writing a word
'permitted' on the requisition submitted by the
Police itself which does not satisfy the
requirement of Section 155(2) of Cr. P.C.,
Such an endorsement cannot be equated with
the word 'Order'."

15. Thus reading of sub-section (1) of
Section 155 of Cr.P.C. makes it clear that the
duty of the SHO, who receives information as
to the commission of a non-cognizable
offence is only to enter or cause to be entered
the substance of the information in the
prescribed book and refer the informant to the
Magistrate. It is for the informant to approach
the jurisdictional Magistrate and seek a
direction to the police for investigation. If the
Magistrate on being approached by the
informant, directs investigation, the Police
Officer concerned would get jurisdiction to
investigate the matter.

16. In the instant case, undisputedly,
there is no such permission having been
obtained by the police from the concerned
Magistrate as required under Section
155(2)
Cr.P.C
on
receiving
credible
evidence with regard to applicant having
committed
a
non-cognizable
offence,
therefore, such proceedings would suffer
from illegality. Compliance of Section 155
(2) Cr.P.C. is mandatory and not directory
and therefore, investigation and report filed
by the police in such case would not be
legally sustainable.

17. It is a settled legal proposition that
if initial action is not in consonance with
law, all subsequent and consequential
proceedings would fall through for the
reason that illegality strikes at the root of
the order. The aforesaid has been held by
the Apex Court in the case of State of
Punjab vs. Davinder Pal Singh Bhullar
and others reported in (2011) 14 SCC 770.

18. Similarly, the Apex Court in the
case of Mangal Prasad Tamoli vs.
Narvadeshwar Mishra reported in (2005) 3
SCC 422, has held that if an order at the
initial stage is bad in law, then all further
proceedings, consequent thereto, will be
non est and have to be necessarily set aside.

19. Meaning thereby that foundation
being removed, structure/work falls, comes
into play and applies on all scores. In the
present case also, wherein, the entire
proceedings have been initiated, without
following the mandatory requirement of
Section 155(2) of Cr.P.C. to take prior
permission of the concerned Magistrate
before proceeding with the investigation in
the matter. Thus, wherein the initial action
of the investigation against the applicant is
illegal, all subsequent actions would be
vitiated.

20. Ignoring the aforesaid fact that the
concerned police officer has investigated
9 All. Shivam Solanki Vs. The State of U.P. & Anr.
665
the matter without following the procedure
as mandated under Section 155(2) of
Cr.P.C., while touching the merits of the
case, there is no consistency in the version
of informant as well as the victim starting
from lodging of the NCR till the
submission of charge sheet. It is for the first
time, in the statement under Section 164
Cr.P.C., the victim has made allegation of
attempt of being sexually assaulted. Thus,
in view of law laid down by the Apex Court
in the case of Santosh Prasad @ Santosh
Kumar vs. the State of Bihar reported in
(2020) 3 SCC 443, the proceedings against
the applicant are nothing but an abuse of
process of the Court. The statement of the
victim should be of sterling quality in order
to believe the allegations made by her
against the applicant. The Apex Court in
the aforesaid case of Santosh Prasad @
Santosh Kumar (supra) has considered
the case of Raju v. State of Madhya
Pradesh, reported in (2008) 15 SCC 133 as
well as Rai Sandeep alias Deepu v. State
(NCT of Delhi) reported in (2012) 8 SCC
21, while coming to the conclusion that the
solitary evidence of the prosecutrix is
sufficient provided the same inspires
confidence and appears to be absolutely
trustworthy, unblemished and should be of
sterling quality.

21. In the case of Raju (supra), it is
observed and held by this Court in
paragraphs 11 and 12 as under:-

"11. It cannot be lost sight of that
rape causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage to
the accused as well. The accused must also
be protected against the possibility of false
implication, particularly where a large
number of accused are involved. It must,
further, be borne in mind that the broad
principle is that an injured witness was
present at the time when the incident
happened and that ordinarily such a
witness would not tell a lie as to the actual
assailants, but there is no presumption or
any basis for assuming that the statement of
such a witness is always correct or without
any embellishment or exaggeration."

22. In the case of Rai Sandeep alias
Deepu (supra), the Apex Court had an
occasion to consider as to who can be said
to be a "sterling witness". In paragraph 22,
it is observed and held as under:-

"22 In our considered opinion, the
"sterling witness" should be of a very high
quality and calibre whose version should,
therefore,
be
unassailable.
The
court
considering the version of such witness should
be in a position to accept it for its face value
without any hesitation. To test the quality of
such a witness, the status of the witness would
be immaterial and what would be relevant is the
truthfulness of the statement made by such a
witness. What would be more relevant would be
the consistency of the statement right from the
starting point till the end, namely, at the time
when the witness makes the initial statement
and ultimately before the court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should not
be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length
and howsoever strenuous it may be and under
no circumstance should give room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of it.
Such a version should have co-relation with
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
666 INDIAN LAW REPORTS ALLAHABAD SERIES
expert opinion. The said version should
consistently match with the version of every
other witness. It can even be stated that it
should be akin to the test applied in the case of
circumstantial evidence where there should not
be any missing link in the chain of
circumstances to hold the accused guilty of the
offence alleged against him. Only if the version
of such a witness qualifies the above test as well
as all other such similar tests to be applied, can
it be held that such a witness can be called as a
"sterling witness" whose version can be
accepted
by
the
court
without
any
corroboration and based on which the guilty
can be punished. To be more precise, the
version of the said witness on the core spectrum
of the crime should remain intact while all other
attendant materials, namely, oral, documentary
and material objects should match the said
version in material particulars in order to
enable the court trying the offence to rely on the
core version to sieve the other supporting
materials for holding the offender guilty of the
charge alleged."

23. Thus, from the aforesaid discussions, it
is clear, that, before arriving at a conclusion that
the offence is made out or not, it is to be seen
that the statement of the victim as well as other
evidences are of a high quality and unassailable
without
there
being
any
contradictions,
exaggerations and the same should be
consistent. In the present case, from narration of
the facts in the NCR till submission of charge
sheet, there is no consistency and only in the
statement under Section 164 Cr.P.C., the victim
has, for the first time, raised her grievance
regarding allegation of an attempt of being
sexually assaulted. The case of the applicant is
also to be seen keeping in mind his career as he
is student and false allegations against him will
cause equal distress, humiliation and damage.
Therefore, the case of the informant does not
stand on the test of law laid down by the Apex
Court in the aforesaid judgments.

24.

Considering
the
facts
and
circumstances of the case, as noted herein
above, and also the submissions made by the
counsel for the parties, the court is of the
considered opinion that the statutory safeguards
as provided under Section 155(2) of Cr.P.C. has
not been followed and the testimony of the
victim was not of sterling quality to believe the
allegations
made
against
the
applicant,
therefore, the entire proceedings is liable to be
quashed.

25. Accordingly, the charge sheet No.57
dated 20.02.2021 and cognizance/summoning
order dated 31.03.2021 as well as the entire
prosecution of Criminal Case No.13805 of
2021 (State vs. Shivam Solanki), arising out of
Case Crime No.504 of 2020, under Sections
323, 504, 506, 427, 386, 376 and 511 IPC,
Police
Station-Hariparvat,
District-Agra,
pending before the court of Chief Judicial
Magistrate, Agra are hereby quashed.

26. The application is, accordingly,
allowed. There shall be no order as to costs.

27. A copy of this order be certified to the
lower court forthwith.
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(2022) 9 ILRA 666
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal Defective No. 11 of 2022
(U/S 372 Cr.P. C.)

Utkarsh Awasthi ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Nitin Kumar Mishra