Allahabad High Court

HARIDAS AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

Decided: 30 March 2026
Bench: CHAWAN PRAKASH

Holding

The court held that a prima facie case exists and the magistrate’s summoning order cannot be quashed under Section 528 CrPC.

Summary

The applicants filed an application under Section 528 of the Criminal Procedure Code seeking to quash the summoning order issued by the Chief Judicial Magistrate in Complaint Case No.2698 of 2024, which charged them with offences under Sections 323, 376D and 120(B) of the IPC. The opposite party had earlier lodged a complaint alleging gang rape and assault, and while the investigating officer’s report concluded that no offence was made out, the magistrate, after recording statements under Sections 200 and 202 CrPC, issued the summons. The applicants argued that there was no prima facie case, no medical evidence and that the magistrate had erred in ignoring the investigation report. The court held that at the stage of a Section 528 application only a prima facie assessment is required and, based on the material, a prima facie case does exist; therefore the magistrate’s order cannot be set aside. Consequently, the application to quash the proceedings was dismissed.

Issues considered

Whether the summoning order under Sections 323, 376D and 120(B) IPC can be quashed under Section 528 CrPC on the ground of lack of prima facie case.
Whether the magistrate erred in not giving effect to the investigating officer’s final report and the statements recorded under Sections 200 and 202 CrPC.
Whether the allegations, as recorded, constitute a cognizable offence warranting continuation of the criminal proceeding.

Legislation cited

Code of Criminal Procedure, 1973 — s. 156(3), 161, 164, 200, 202, 528
Indian Penal Code — s. 120B, 323, 376D, 506

Subjects

Section 528
quash
summoning order
prima facie
rape
criminal proceeding
magistrate
investigation report

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 33024 of 2025

Haridas And 3 Others
.....Applicant(s)
Versus

State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Tarun Jha
Counsel for Opposite Party(s) : G.A., Raj Kumar

Court No. - 81
HON'BLE CHAWAN PRAKASH, J.

1. Heard Sri Tarun Jha, learned counsel for the applicants, learned A.G.A.
for the State and Sri Raj Kumar, learned counsel for the opposite party no.
2 and perused the record.

2. The present application under Section 528 B.N.S.S. has been filed for
quashing the entire proceedings of Complaint Case No.2698 of 2024
(Smt. Khilauni Vs. Ramesh and others), under Sections 323, 376D,
120(B) I.P.C., Police Station Kotwali Konch, District Jalaun, pending in
the court of learned Chief Judicial Magistrate, Jalaun at Orai as well as
summoning order dated 10.03.2025.

3. It is submitted by learned counsel for the applicants that opposite party
no. 2 filed an application under Section 156(3) Cr.P.C. regarding an
incident dated 22.03.2015, the said application was allowed by the
learned Magistrate and a first information report as Case Crime No. 671
of 2015 was registered against the applicants under Sections 376D, 323,
506 I.P.C. at Police Station Kotwali Konch, District Jalaun against six
persons including the applicants. During investigation, police recorded the
statement of opposite party no. 2 under Section 161 Cr.P.C. wherein she
made no allegation against the applicants. Thereafter her statement was
recorded under Section 164 Cr.P.C. wherein she made allegation of rape
against the applicants. The police recorded the statement of independent
witnesses as well as husband of the opposite party no. 2 wherein they
stated that no such incident has taken place. During investigation, Shiv
NA528 No. 33024 of 2025
2

Prasad and Prabhu Dayal filed their affidavits before the Station House
Officer, Kotwali Konch, District Jalaun stating therein that no such
incident took place and the allegations made by opposite party no. 2 were
false. The investigating Officer after completing the investigation, found
that no offence is made out against the applicants and submitted the final
report. Thereafter the opposite party no. 2 filed protest petition. Statement
of opposite party no. 2 was recorded under Section 200 Cr.P.C. and
witnesses Prabhudayal as PW-1, Sjhiv Prasad as PW-2 and Ramesh
Kushwaha as PW-3 and learned Magistrate has summoned the applicants
under Sections 323, 376D, 120(B) I.P.C. The opposite party no. 2 and
other witnesses have changed the prosecution story. It is further submitted
that it is no injury case. The prosecution has failed to produce any medical
evidence to substantiate the allegation of offence under Section 376D
I.P.C. It is next submitted that no prima facie case is made out against the
applicants and learned Magistrate has not taken into consideration the
facts of the case properly and has summoned the applicants, therefore,
summoning order is liable to be quashed.

4. Per contra, learned counsel for the opposite party no. 2 as well as
learned A.G.A. opposed the submissions made by learned counsel for the
applicants and submitted that opposite party no. 2 filed an application
under Section 156(3) Cr.P.C. against six persons including the applicants
with the allegation that her marriage was solemnized with Ramesh and
out of their wedlock, two children were born. Her husband was gambler.
He used to send her to Haridas for money. She made objection and
refused to go with Haridas, brother-in-law of opposite party no. 2.
Haridas, Kishor, Veer Singh and Kamlesh used to sexually assault her at
the house of Veer Singh. Her husband used to sleep in another room along
with children. She stated to her husband but the husband did not assist
her. She visited to the police station to lodge the first information report
but no first information report was registered. Thereafter she filed a
complaint which was allowed and the first information report was
registered. The Investigating Officer did not investigate the mater
properly and submitted final report. Thereafter the opposite party no. 2
filed protest petition. The learned Magistrate after taking cognizance of
the statement of the opposite party no. 2 under Section 200 Cr.P.C. and
NA528 No. 33024 of 2025
3

other witnesses under Section 202 Cr.P.C. has summoned the applicants.
The learned Magistrate has not committed any illegality in passing the
impugned summoning order, It cannot be said that no offence is made out
against the applicants.

5. As per fact of this case, the opposite party no. 2 filed an application
under Section 156(3) Cr.P.C. regarding the incident of gang rape
committed by the applicants. During the investigation, her statement was
recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The Investigating
Officer after completing the investigation, filed final report. Thereafter, a
protest petition was filed by opposite party no. 2. Her statement was
recorded under Section 200 Cr.P.C. and witnesses under Section 202
Cr.P.C. After recording the statements of the opposite party no. 2 and
witnesses, the learned Magistrate has summoned the applicants vide
impugned order.

6. From the perusal of material on record and the facts of the case, at this
stage, it cannot be said that no offence is made out against the applicants.
All the submissions made at the bar relates to the disputed questions on
fact, which cannot be adjudicated upon by this Court in exercise of power
conferred under Section 528 B.N.S.S.. At this stage, only prima facie case
to be considered in the light of the law laid down by Supreme Court in
the case of RP Kapoor Vs. State of Punjab, AIR 1990 SC 66; State of
Haryana Vs. Bhajan Lal, 1992 SCC (Criminal) 426; and State of Bihar
Vs. P.P. Sharma, 1992 SCC (Criminal) 192. The disputed defence of the
applicants cannot be considered at this stage.

7. Considering the facts and circumstances of the case, I do not find any
ground to quash the aforementioned case, therefore, the prayer for
quashing the same is hereby refused and the application is dismissed.

(Chawan Prakash,J.)
March 31, 2026
Rmk.

Digitally signed by :-
RAM MURTI KUSHWAHA
High Court of Judicature at Allahabad

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