Uttarakhand High Court
Rajendra Prasad vs State Of Uttarakhand & Others on 3 July, 2025
2025:UHC:6301
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
CRIMINAL MISC. APPLICATION No.537 of 2024
Rajendra Prasad ......Applicant
Versus
State of Uttarakhand & Others .....Respondents
Presence:
Mr. Arun Pratap Shah, learned counsel for the Applicant.
Mr. Vipul Painuly, learned A.G.A. for the State of Uttarakhand.
Hon'ble Ashish Naithani, J.
1. The present criminal miscellaneous application under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 has been preferred by the
Applicant, Rajendra Prasad, seeking quashing of the entire proceedings of
Special Sessions Trial No. 12 of 2023 titled State vs. Rajendra, which is
pending before the learned Fast Track Court/Special Judge (POCSO),
Dehradun/Additional District Judge, Dehradun arising out of Case Crime
No. 477/2022. The Applicant also prays for quashing of the charge-sheet,
the cognizance and summoning order dated 06.02.2023, as well as the
order dated 04.09.2024 passed by the learned trial court dismissing his
discharge application.
2. The factual matrix, as emerging from the record, reveals that FIR No. 477
of 2022 was lodged at Police Station Raipur, District Dehradun, on
31.10.2022, at approximately 9:00 PM by the victim, a minor girl aged
approximately 13 years. According to the FIR, the incident allegedly
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
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occurred on the same day at approximately 3:30 PM, when the victim was
inside the washroom of her house. It was alleged that she heard a sound
and, upon opening the door, saw a person holding the victim's hand. Her
elder sister, who was also present at the house, witnessed the incident and
reportedly said that she would call their "Chachu". Upon hearing this, the
accused allegedly fled the scene. The individual was later identified as the
Applicant Rajendra Prasad, a neighbour of the victim.
3. During the course of investigation, statements of the victim were recorded
under Section 164 CrPC in which she reiterated the same sequence of
events, naming the Applicant and asserting that he had held her hand. Her
sister also recorded her statement in support of the incident. The
investigating officer, after collecting further material including statements
of witnesses and the school certificate of the victim, submitted a charge-
sheet under Sections 354, 452 IPC and Sections 7 and 8 of the POCSO
Act. Cognizance was taken by the trial court on 06.02.2023 and summons
were issued to the Applicant. The Applicant's application for discharge
was subsequently rejected by the learned trial court on 04.09.2024.
4. Heard learned counsel for the parties and perused the records.
5. Learned counsel for the Applicant, Mr. Arun Pratap Shah, argued that the
Applicant has been falsely implicated in the present case due to personal
enmity and prior financial disputes with the family of the victim.
6. It was contended that on the very date of the incident, i.e., 31.10.2022, the
Applicant had already been taken into preventive custody under Sections
151/107/116 CrPC at 7:25 PM owing to an altercation with a third party,
and this fact is documented through GD entries and arrest memo. It was
further argued that the FIR was lodged only after the Applicant was taken
into custody, thereby raising serious questions on the authenticity of the
allegations.
7. Learned counsel for the Applicant further submitted that, even if the
State's case is accepted at face value, the allegations do not disclose the
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
2025:UHC:6301
commission of sexual assault as defined under Section 7 of the POCSO
Act. It was argued that the act of merely holding the victim's hand, in the
absence of any inappropriate touching of private parts or any conduct
indicative of sexual intent, does not satisfy the statutory ingredients of the
offence.
8. Learned counsel submitted that there is also no allegation suggesting use
of criminal force with the intent to outrage the modesty of the victim, nor
any house trespass involving preparation to commit an offence. As such, it
was argued, none of the ingredients necessary for constituting offences
under Sections 354, 452 IPC or Sections 7/8 of the POCSO Act are present
in the case.
9. On these grounds, it was submitted that no prima facie case is made out
against the Applicant and continuation of criminal proceedings would
amount to an abuse of the process of the court. Accordingly, a prayer was
made for quashing the criminal proceedings and for allowing the discharge
application.
10. Per contra, the learned A.G.A. submitted that the material on record, at
this stage, discloses sufficient prima facie grounds to proceed against the
Applicant. It was contended that the statements of the victim/prosecutrix
and her sister, recorded under Sections 161 and 164 CrPC, are consistent,
credible, and corroborate the allegations made in the FIR. It was further
submitted that the disputed questions of fact raised by the Applicant
cannot be examined at this stage and are matters to be adjudicated upon
during the course of the trial.
11. The learned Government counsel also emphasized that the trial court,
after applying judicial mind, had rejected the discharge application by a
reasoned order, and had rightly concluded that the available evidence
justifies framing of charges under the relevant penal provisions.
12. It was submitted that the present application is an attempt to invite this
Court to conduct a mini-trial at the pre-trial stage, which is impermissible
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
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in law. The State maintained that the application lacks legal merit and
deserves to be dismissed.
13. Having heard the learned counsel for both parties at length, this Court
proceeds to consider whether the continuation of criminal proceedings
against the Applicant under Sections 354 and 452 IPC and Sections 7 and
8 of the POCSO Act is legally sustainable in light of the applicable
standard for exercise of jurisdiction under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS).
14. It was alleged that earlier that afternoon, around 3:30 PM, a man
referred to as "uncle", later identified as the Applicant, Rajendra Prasad,
entered the house of the victim when her parents were not present and
allegedly held her hand as she exited the washroom. It is alleged that upon
being confronted by the victim's elder sister, the Applicant ran away.
These allegations were reiterated in the victim's statement under Section
164 CrPC, and her sister also recorded a similar statement. Based on these,
a charge sheet was filed under Sections 354, 452 IPC and 7/8 of the
POCSO Act.
15. The offence under Section 354 IPC requires assault or criminal force
used against a woman with the intent to outrage her modesty, or
knowledge that such act is likely to do so. Courts have repeatedly
emphasized that there must be a culpable mental state, reflected in the
nature of contact, body language, intent, or circumstances.
16. In the present case, the allegation is that the Applicant held the victim's
hand. There is no allegation of criminal force, violence, suggestive
gestures, threats, or remarks. The FIR and statements do not suggest any
intent to outrage the modesty of the victim/prosecutrix. No facts on record
indicate that the act was of a nature that could arouse fear, shame, or
embarrassment in the victim, nor that it was accompanied by intent to
demean or violate her bodily autonomy.
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
2025:UHC:6301
17. It is therefore evident that the conduct alleged does not satisfy the
statutory ingredients of Section 354 IPC, as mere physical contact without
any criminal intent or force does not amount to outraging modesty.
18. The offence under Section 452 of the Indian Penal Code (IPC) deals
with house-trespass after preparation for hurt, assault, or wrongful
restraint. It is a serious offence involving criminal trespass with added
intent and preparation to commit violence or restraint, an aggravated form
of house trespass. It requires proof of unlawful entry into a house after
making preparation to cause hurt, assault or wrongful restraint.
19. The materials on record show no such preparation. There is no
allegation that the Applicant was carrying any weapon, used force to enter,
or had any plan or motive to harm the victim/prosecutrix or anyone else.
The Applicant is admittedly a neighbour, and no facts are stated that would
elevate the incident to a criminal trespass with aggravating intent as
contemplated under Section 452.
20. It must be remembered that Section 452 carries serious penal
consequences, and courts have consistently required that the prosecution
clearly establish the element of preparation. In the absence of such
material, invocation of this provision becomes legally untenable.
21. There is also no reference to the Applicant restraining the victim from
hurting anyone or preparing to do so. Neither the State's allegations nor
the material on record disclose any element of preparation, which is a sine
qua non for the application of Section 452 IPC.
22. Accordingly, this Court finds that the allegation of unlawful entry, even
if presumed, does not attract the ingredients necessary to prosecute the
Applicant under Section 452 IPC.
23. Applying these tests to the case at hand, this Court finds that the entire
allegation rests on a single act of the Applicant allegedly holding the hand
of the minor victim. There is no allegation of touching of private parts, nor
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
2025:UHC:6301
any act that falls within the specific conduct criminalized under Section 7
of the POCSO Act.
24. The State has not presented any facts or conduct to reasonably infer
sexual intent, which is the sine qua non for an offence under Sections 7
and 8. Holding a person's hand, even if true, without any further
inappropriate or suggestive conduct, and particularly when committed in
the presence of others, cannot by itself be treated as sexual assault.
25. The crucial question before this Court is not to conduct a mini-trial or
to weigh the sufficiency of evidence, but to examine whether the
allegations, even if taken at face value and in their entirety, disclose the
commission of the offences alleged under the penal provisions invoked
against the Applicant. The scope of such examination has been
authoritatively laid down by the Hon'ble Supreme Court in State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and reaffirmed in R.P.
Kapur v. State of Punjab, AIR 1960 SC 866. It has been consistently held
that criminal proceedings may be quashed where the allegations do not
constitute any offence or where they appear manifestly absurd or
inherently improbable.
26. This Court has given its anxious consideration to the applicability of
Sections 7 and 8 of the POCSO Act in the facts of the present case. It is
well settled that for an act to amount to "sexual assault" under Section 7,
two foundational elements must co-exist: physical contact without
penetration, and sexual intent. In the absence of either, the statutory
offence is not attracted.
27. In the instant case, the Applicant is admittedly a neighbour of the
victim. The FIR does not allege any act of violence, restraint, or threat, nor
is there any indication that the Applicant entered the premises with prior
preparation or a preconceived plan to harm or attack. The entry, if at all,
appears to have occurred during the daytime, and there is no assertion of
any weapon being carried, door being broken, or forcible intrusion.
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Criminal Misc. Application No. 537 of 2024-----Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
2025:UHC:6301
Moreover, there is no suggestion that the Applicant prevented the
victim/prosecutrix or her sister from leaving or raising an alarm, nor is
there any claim of the use of criminal force.
28. In the instant case, the solitary allegation made by the victim/.Is that the
Applicant, while inside the house, held her hand as she came out of the
washroom, and thereafter fled upon hearing her sister warn him. The
statement of the victim and her sister, even when read conjointly, does not
attribute any act beyond this limited contact. There is no allegation of
touching any private part, nor is there any assertion of an act indicative of
overt sexual motive or gratification.
ORDER
Accordingly, the present Criminal Miscellaneous Application No. 537
of 2024 is allowed.
The entire proceedings in Special Sessions Trial No. 12 of 2023,
including the charge sheet, the cognizance and summoning order dated
06.02.2023, and the order dated 04.09.2024 rejecting the discharge
application, are hereby quashed.
It is clarified that this judgment has been rendered solely based on legal
infirmities in the prosecution’s case as disclosed on the face of the record,
and shall not be construed as a reflection on the merits of the parties in any
other context.
Ashish Naithani, J.
Dated: 03.07.2025
SB
SHIKSHA
Digitally signed by SHIKSHA BINJOLA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT
OF UTTARAKHAND,
2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c1
2f21822fbd40bf639b1c, postalCode=263001,
BINJOLA
st=UTTARAKHAND,
serialNumber=FD80A2D028949381C52796A542D7FF0A9BED0
0E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA
Date: 2025.07.25 17:27:23 +05’30’
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Criminal Misc. Application No. 537 of 2024—–Rajendra Prasad vs State of Uttarakhand & others
Ashish Naithani J.
