Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DIGILAW 395 (HP)

Pushpinder Banyal v. State of H. P.

2025-03-19

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. Informant Dr. Uday Bhanu made a complaint to the police that the victim was brought to Mandav Hospital on 06.05.2024 at about 5:40 p.m. for delivering a child. She was 17 years old as per the Jacha Bacha card issued to her. Her husband Kundan Lal was with her. She delivered a boy in the hospital. Since the victim was a minor, therefore, the police registered the F.I.R. for the commission of offences punishable under Section 376 of the Indian Penal Code ( short IPC ) and Section 6 of the Protection of Children from Sexual Offence Act, 2012 ( short POCSO ) and Sections 9 and 10 of the Prohibition of Child Marriage Act, 2006 . The police conducted the investigation and filed a charge sheet before the learned Special Judge, Fast Track Court, Mandi, District Mandi, H.P. after the completion of the investigation. The learned Trial Court ordered the summoning of the accused mentioned in the charge sheet vide order dated 30.08.2024. 2. Being aggrieved from the registration of the F.I.R., the petitioner has filed the present petition for quashing the summoning order, charge sheet and F.I.R. It has been asserted that a false case was made against the petitioner on the informant’s complaint. The victim disclosed that she was married to Kundan Lal and had delivered a child on 06.05.2024. Kundan Lal confirmed his relationship with the victim. He stated that the Jacha Bacha Card of the victim was prepared at PHC Kelti. The victim was examined at CHC Thunag on 27.09.2023, 09.11.2023, 09.12.2023, 09.01.2024, 02.03.2024 and 02.04.2024. Her ultrasound was performed at Mandav Hospital, Mandi on 11.12.2023 and 02.04.2024. The police found that a regular health check of the victim was performed by three doctors and the victim's age was described as 16-17 years. FHW, CHO and Asha workers had prepared the Jacha Bacha Card and High-Risk Pregnancy card in which the victim was mentioned as a teenager. The medical officers did not provide any information regarding her pregnancy to the police; hence, the police added Section 21 of the POCSO Act. The police filed the charge sheet against the petitioner and other persons. The petitioner has no role to play in the present matter and he was impleaded as an accused without any evidence. The petitioner was posted as Medical Officer at CHC Thung, during the relevant period. The police filed the charge sheet against the petitioner and other persons. The petitioner has no role to play in the present matter and he was impleaded as an accused without any evidence. The petitioner was posted as Medical Officer at CHC Thung, during the relevant period. The petitioner did not know about the victim’s age. The prescription slip and the register containing the victim’s particulars were prepared by the Pharmacist on duty. The F.I.R. does not contain the name of the petitioner and he was wrongly impleaded. The petitioner is under no obligation to investigate and gather knowledge about the age of the victim. The continuation of the proceedings amounts to abuse of the process of the Court. The learned Special Judge has not mentioned Section 21 of the POCSO Act and the summoning order is bad, therefore, it was prayed that the present petition be allowed and that F.I.R. be quashed. 3. I have heard Mr. Kashmir Singh Thakur, learned Senior Counsel assisted by Mr. Harjeet Singh, Advocate for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State. 4. Mr. Kashmir Singh Thakur, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. Learned Trial Judge has not assigned any reason while summoning the petitioner. Section 21 of the POCSO Act was not mentioned by the learned Trial Judge. The petitioner is a Medical Officer and is under no obligation to make enquiries about the age of the patients. He relied upon the judgment of Madras High Court passed in Dr Jenbaglakshmi vs. The State of Tamil Nadu and another Crl.OP(MD) No. 15947 of 2024 in support of his submission. 5. Mr Jitender K. Sharma, learned Additional Advocate General for the respondents/State submitted that as per photocopies of the order sheets filed with the petition, the petitioner was summoned for 28.09.2024. He had filed the present petition after four months. The petitioner has not disputed that he was posted in CHC Thunag at the relevant time. The record seized by the police shows that the petitioner had treated the victim on different dates. The age of the victim was mentioned in the medical record and the petitioner was bound to inform the police, under Section 19 of the POCSO Act, which is punishable under Section 21 of the POCSO Act. The record seized by the police shows that the petitioner had treated the victim on different dates. The age of the victim was mentioned in the medical record and the petitioner was bound to inform the police, under Section 19 of the POCSO Act, which is punishable under Section 21 of the POCSO Act. Mere failure to mention the Section in the summoning order is not fatal to the case, therefore, he prayed that the petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the record carefully. 7. The law relating to quashing of FIR was explained by the Hon’ble Supreme Court in B.N. John v. State of U.P. , 2025 SCC OnLine SC 7 as under: - “7. As far as the quashing of criminal cases is concerned, it is now more or less well settled as regards the principles to be applied by the court. In this regard, one may refer to the decision of this Court in State of Haryana v. Ch. Bhajan Lal , 1992 Supp (1) SCC 335 , wherein this Court has summarized some of the principles under which FIR/complaints/criminal cases could be quashed in the following words: “102. 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. (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) 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 FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR 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 concerned 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.” (emphasis added) 8. Of the aforesaid criteria, clause no. (1), (4) and (6) would be of relevance to us in this case. In clause (1) it has been mentioned that 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, then the FIR or the complaint can be quashed. In clause (1) it has been mentioned that 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, then the FIR or the complaint can be quashed. As per clause (4), where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order dated by the Magistrate as contemplated under Section 155 (2) of the CrPC, and in such a situation, the FIR can be quashed. Similarly, as provided under clause (6), if there is an express legal bar engrafted in any of the provisions of the CrPC or the concerned Act under which the criminal proceedings are instituted, such proceeding can be quashed.” 8. This position was reiterated in Ajay Malik v. State of Uttarakhand, 2025 SCC OnLine SC 185 wherein it was observed: “8. It is well established that a High Court, in exercising its extraordinary powers under Section 482 of the CrPC, may issue orders to prevent the abuse of court processes or to secure the ends of justice. These inherent powers are neither controlled nor limited by any other statutory provision. However, given the broad and profound nature of this authority, the High Court must exercise it sparingly. The conditions for invoking such powers are embedded within Section 482 of the CrPC itself, allowing the High Court to act only in cases of clear abuse of process or where intervention is essential to uphold the ends of justice. 9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. 9. It is in this backdrop that this Court, over the course of several decades, has laid down the principles and guidelines that High Courts must follow before quashing criminal proceedings at the threshold, thereby pre-empting the Prosecution from building its case before the Trial Court. The grounds for quashing, inter alia, contemplate the following situations : ( i ) the criminal complaint has been filed with mala fides; ( ii ) the FIR represents an abuse of the legal process; ( iii ) no prima facie offence is made out; ( iv ) the dispute is civil in nature; ( v. ) the complaint contains vague and omnibus allegations; and ( vi ) the parties are willing to settle and compound the dispute amicably ( State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 9. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. It is not disputed in the petition that the victim was a minor on the date of her pregnancy. The F.I.R. mentions that the Jacha Bacha Card of the victim showed her age to be 17 years. The victim was treated at CHC Thunag on different dates, therefore, the petitioner would have been aware of the fact that the victim was minor on the date of her examination and also that she was pregnant by simply looking at the Jacha Bacha Card; hence, the plea taken by the petitioner that he did not know the victim being a child is prima facie not established on the record. 10. In Dr. Jenbagalakshmi (supra), the victim had disclosed that she was 18 years old and married. It was held by the Madras High Court that the Doctor was not supposed to make inquiries about the correctness of the declaration made by the victim. 11. In the present case, the victim never disclosed herself to be more than 18 years old; rather the record shows that she was 17 years old and a child within the meaning of the POCSO Act. The petitioner being a Doctor was aware of the fact that the victim was pregnant and an offence under the POCSO Act was committed against her, therefore, he was duty-bound to report the offence to the police under Section 19 of the POCSO Act punishable under Section 21 of the POCSO Act. The petitioner being a Doctor was aware of the fact that the victim was pregnant and an offence under the POCSO Act was committed against her, therefore, he was duty-bound to report the offence to the police under Section 19 of the POCSO Act punishable under Section 21 of the POCSO Act. Hence, the ingredients of the FIR prima facie make out a case for the commission of an offence punishable under section 21 of the POCSO Act. 12. It was submitted that the learned Trial Judge was required to record reasons before summoning the accused. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Bhushan Kumar v. State (NCT of Delhi), (2012) 5 SCC 424: (2012) 2 SCC (Cri) 872: 2012 SCC OnLine SC 325 , that there is no need to record reasons while issuing the summons. It was observed at page 429: “13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a prerequisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith. 15. In Kanti Bhadra Shah v. State of W.B. [ (2000) 1 SCC 722 : 2000 SCC (Cri) 303] the following passage will be apposite in this context: (SCC p. 726, para 12) “12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such extra work. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate it if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.” (emphasis supplied) 16. In Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736: 1976 SCC (Cri) 507] this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that: (SCC p. 741, para 5) “5. … Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint if proved, would ultimately end in the conviction of the accused.” 17. In Chief Controller of Imports & Exports v. Roshanlal Agarwal [ (2003) 4 SCC 139 : 2003 SCC (Cri) 788] this Court, in para 9, held as under: (SCC pp. 145-46) “9. In Chief Controller of Imports & Exports v. Roshanlal Agarwal [ (2003) 4 SCC 139 : 2003 SCC (Cri) 788] this Court, in para 9, held as under: (SCC pp. 145-46) “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. [ (2000) 3 SCC 745 ] and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. [ (2000) 1 SCC 722 : 2000 SCC (Cri) 303] it was held as follows: ( U.P. Pollution case [(2000) 3 SCC 745 ], SCC p. 749, para 6) ‘6. The legislature has stressed the need to record reasons in certain situations such as the dismissal of a complaint without issuing a process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to the accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.’” 18. In U.P. Pollution Control Board v. Bhupendra Kumar Modi [ (2009) 2 SCC 147 : (2009) 1 SCC (Cri) 679] this Court, in para 23, held as under: (SCC p. 154) “23. It is a settled legal position that at the stage of the issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused.” 19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. 13. This position was reiterated in State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 2019 SCC OnLine SC 132 wherein it was observed: 22. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. 13. This position was reiterated in State of Gujarat v. Afroz Mohammed Hasanfatta, (2019) 20 SCC 539 2019 SCC OnLine SC 132 wherein it was observed: 22. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected are adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 CrPC is not the same at the time of framing the charge. For issuance of summons under Section 204 CrPC, the expression used is “there is sufficient ground for proceeding…”; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is “there is ground for presuming that the accused has committed an offence…”. At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 CrPC, detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police have filed a chargesheet along with the materials thereon may be considered as sufficient ground for proceeding for the issuance of summons under Section 204 CrPC. 14. In the present case, the learned Special Judge specifically stated in the order that she had gone through the challan and other documents annexed with it and there was sufficient ground to take cognizance of the offences, hence, cognizance was taken. This was sufficient compliance. 15. It was submitted that the learned Special Judge failed to mention Section 21 of the POCSO Act and the summoning order is bad. This submission is not acceptable. Learned Special has to frame a charge for the commission of an offence which is made out after hearing the learned Public Prosecutor and the learned counsel for the accused. She is not bound by summoning order; therefore, mere non-mention of Section 21 of the POCSO Act is no ground to quash the summoning order. 16. The summoning order passed on 30.08.2024. The photocopies of the order sheets show the petitioner was served for 28.10.2024, therefore, the petitioner was aware of his summoning. She is not bound by summoning order; therefore, mere non-mention of Section 21 of the POCSO Act is no ground to quash the summoning order. 16. The summoning order passed on 30.08.2024. The photocopies of the order sheets show the petitioner was served for 28.10.2024, therefore, the petitioner was aware of his summoning. There is force in the submission of the learned Additional Advocate General that the petitioner has approached the Court belatedly. It was laid down by the Delhi High Court in Sanyam Bhushan v. State (NCT of Delhi), 2024 SCC OnLine Del 4545 that the Court should not entertain the belated petitions for quashing the FIR. It was observed: “43. At the outset, I find merit in the submission made by the learned counsel for the Complainant that the present set of petitions is liable to be dismissed on the ground of delay and laches as also for the failure of the petitioners to avail of their alternate efficacious remedy in form of Revision Petitions under Section 397 of the Cr. P.C. 44. It need not be emphasized that powers under Section 482 of the Cr. P.C. are discretionary in nature and though there may not be a total ban on the exercise of such power where the situation so warrants, at the same time, there are limitations of self-restraint that are recognized and followed by the Courts in exercising this jurisdiction. One such limitation is where the petitioner had an alternate efficacious remedy, however, did not avail of the same within the period of limitation and thereafter filed the petition under Section 482 of the Cr. P.C. to overcome the objection of limitation. Similarly, the Courts have refused to entertain a petition under Section 482 of the Cr. P.C. where it is filed with unexplained delay and laches and in the meantime, the trial has proceeded.” 17. Hence, in these circumstances, the exercise of inherent jurisdiction under Section 528 of BNSS is not justified. 18. No other point was urged. 19. In view of the above, the present petition fails and the same is dismissed, so also the pending applications, if any. 20. The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.