Allahabad High Court
Haji Mahboob Ahmad And Anr. vs State Of U.P. Thru. Home Secy. Lucknow ... on 9 November, 2022
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED ON : 31.10.2022 DELIVERED ON : 09.11.2022 Court No. - 1 Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 79 of 2022 Appellant :- Haji Mahboob Ahmad And Anr. Respondent :- State Of U.P. Thru. Home Secy. Lucknow And Ors. Counsel for Appellant :- Khaleeq Ahmad Khan,Mohemmed Amir Naqvi,Najam Zafar,Rafat Farooqui Counsel for Respondent :- G.A.,Shiv P. Shukla Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
( Delivered by Hon'ble Ramesh Sinha, J.) (A) INTRODUCTION (1) Appellants, Haji Mohboob Ahmad and Syed Akhlaq Ahmad, claiming themselves to be victim, have filed the instant criminal appeal under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''Cr.P.C.'), challenging the judgment and order dated 30.09.2020 passed by the Special Judge (Ayodhya Matter), Lucknow in Sessions Trial No. 344 of 1994 : State Vs. Pawan Kumar Pandey and others arising out of Case Crime No. 197 of 1992 and Sessions Trial No. 423 of 2017 : State Vs. Lal Krishna Advani and others, (R.C. 8 (s)/92-S.I.U-V/S.I.C.-II, R.C. No. 1 (S)/93-S.I.C.-IV and R.C. No.2 (S)/93 along with 48 (S)/93, under Sections 147, 149, 120-B, 114 read with Section 153A, 153B, 505, 295, 295A, 395, 332/338, 201 and 505 (1) (b) of the Indian Penal Code (in short, ''IPC'), whereby accused persons were acquitted.
(B) FACTUAL MATRIX (2) On 6th December, 1992, the disputed structure, popularly known as "Ram Janam Bhoomi/Babri Masjid" at Ayodhya was demolished by a group of persons. Consequent upon demolition of the aforesaid structure, two cases were registered on the same day i.e. (i) Crime No. 197/1992 under Sections 395, 397, 332, 337, 238, 295, 297, 153A IPC was registered by the police of Police Station Ram Janam Bhoomi, District Faizabad, against unnamed Kar Sevaks; and (ii) Crime No. 198 of 1992 was also registered by the police of Police Station Ram Janam Bhoomi District Faizabad wherein eight persons were implicated as accused under Sections 153A, 153B, 505, 147, 149 IPC. In the aforesaid cases, there were allegations of widespread commission of robbery, rioting and mischief and other minor offences by different groups of persons against the media and 47 crimes were also registered for offences punishable under Sections 392, 394, 395, 147, 427, 336, etc. The investigation of the crime registered as Case Crime No. 197 of 92 was entrusted to the Central Bureau of Investigation (C.B.I.) on 13.12.1992, upon which the CBI re-registered the case as R.C. No. 8(S)/92-SIU.V-New Delhi. However, the investigation of Case Crime No. 198 of 92 was taken over by CBCID of the State of Uttar Pradesh on 10.12.1992. On 16.12.1992, the State of Uttar Pradesh, in consultation with this Court, established a Special Court of Judicial Magistrate First Class with its place of sitting at Lalitpur, to try the case relating to Crime No. 198/1992. The CB CID of the State filed the final report under Section 173 of the Cr.P.C. After that, Crime No. 198 of 1992 had been registered against all eight accused persons named in the First Information Report, for the offences under Sections 153A, 153B, 505, 147 and 149 IPC. Thereafter, the Special Judicial Magistrate at Lalitpur took cognizance of the case on 1.3.1993.
By Notification dated 8.7.1993, the State Government, after consultation with the High Court, shifted the place of sitting of the Court of Special Judicial Magistrate from Lalitpur to Rae Barelli. By Notification dated 26.8.1993, the Government of India, with the consent of the Government of Uttar Pradesh entrusted the investigation of Crime No. 198/92 and cases arising from same facts/transaction to the CBI. The CBI re- registered the Crime No. 198/92 as R.C. 1(s)/93 and the other 47 related cases as R.C. Nos. 2(s)/93 to 48(s)/93.
On 8.9.1993, the Government of Uttar Pradesh, in consultation with this Court, issued a Notification establishing a Special Court of Additional Chief Judicial Magistrate at Lucknow, for trial of cases arising out of demolition of the disputed structure at Ayodhya, investigated by CBI.
In the meanwhile, on 07.12.1992, appellant no.1-Haji Mahboob Ahmad had lodged separate F.I.R., bearing Case Crime No. 201 of 1992, at police station Ram Janam Bhoomi, district Faizabad alleging therein that his house and other minority communities were looted and burnt by the lakhs of Kar Sewak gathered in Ayodhya on 06.12.1992. Appellant no.2-Syed Akhlaq Ahmad had also lodged separate F.I.R., bearing Case Crime No. 216 of 1992, in police station Ram Janam Bhoomi, district Faizabad, alleging that his house and other minority communities were looted and burnt by the lakhs of Kar Sewak gathered in Ayodhya on 06.12.1992. The investigation of the aforesaid cases filed by the appellants were conducted and after due investigation, the Investigating Officer had filed charge-sheet against the accused persons in Case Crime No. 201 of 1992, whereas in Case Crime No. 216A of 1992 filed by the appellant no.2, final report was submitted on 28.04.1993. Thereafter, Case Crime No. 201 of 1992 was committed to the Court of Sessions, Faizabad vide Sessions Trial No. 681 of 1994, wherein charges were framed against the accused persons under Sections 395, 397, 436 I.P.C. and the trial of the same was commenced and ultimately, the trial Court, after hearing the parties and going through the evidence on record, acquitted the accused persons by means of the judgment and order dated 02.02.1998, which attained finality as the same has not been challenged by the appellant no.1 till date.
However, charge-sheet was filed by the C.B.I. in Case Crime No. 197 of 1992 and 198 of 1992. After that both these cases were committed to the Court of Sessions vide Sessions Trial Nos. 344 of 1994, 344 (B) of 1994, 423 of 2017, 496 of 2019 and 818 of 2020, wherein apart from other witnesses, appellants were also examined as P.W.10 and P.W.53, respectively.
During pendency of the aforesaid Sessions Trial Nos. 344 of 1994, 344 (B) of 1994, 423 of 2017, 496 of 2019 and 818 of 2020, appellants had filed application under Section 2 (wa) and Section 24 (8) of the Cr.P.C. on 21.08.2020, which was rejected by the trial Court vide order dated 25.08.2020 and the same attained finality as the same has not been challenged by the appellants further before any superior Court. After that the trial Court, after hearing the parties and going through the evidence on record, has passed the impugned judgment and order dated 30.09.2020, acquitting the accused persons from the charges levelled against them.
Feeling aggrieved by the acquittal of the accused persons by the impugned judgment and order dated 30.09.2020, the appellants have approached this Court by filing criminal revision no. 26 of 2021, which, on the request of appellants' Counsel, directed the office to treat it as an appeal filed under Section 372 Cr.P.C. and allot regular number vide order dated 18.07.2022 passed by the learned Single Judge.
In pursuance of the aforesaid order dated 18.07.2022, the office has treated the aforesaid criminal revision as an appeal filed under Section 372 of the Cr.P.C. and allotted number as Criminal Appeal U/s 372 Cr.P.C. No. 79 of 2022.
(3) Heard Shri Syed Farman Naqvi, learned Senior Advocate assisted by Shri Najam Zafar, Mohammad Amit Naqvi, Shri Munwar Hussain, appearing on behalf of the appellants, Shri Arunendra, learned Additional Government Advocate appearing on behalf of respondent no.1/State, Shri Shiv P. Shukla, learned Counsel appearing on behalf of respondent no.2/C.B.I. and Shri Raghvendra Singh, learned Senior Advocate assisted by Shri Abhishek Singh, appearing on behalf of the respondent no.28, on the question of locus of the appellants to maintain the instant appeal.
(C) PRELIMINARY OBJECTION ON BEHALF OF THE RESPONDENTS (4) At the outset, Shri Shiv P. Shukla, learned Counsel for the respondent no.2/C.B.I. has raised a preliminary objection regarding the locus of the appellants to maintain the instant appeal and argued that on 06.12.1992, two F.I.Rs. were registered i.e. (i) F.I.R. No. 197 of 1992 against lakhs of unknown Kar Sewaks ; and (ii) F.I.R. No. 198 of 1992 against eight accused persons, relating to demolition of disputed structure at Ayodhya in police station Ramjanam Bhoomi, District Faizabad. Subsequently, 47 other cases relating to assault on media persons were also registered in police station Ramjanam Bhoomi, District Faizabad. He argued that the investigation of Case Crime No. 197 of 1992, Case Crime No. 198 of 1992 and 47 other cases were entrusted to the C.B.I. by the State of U.P. After completion of investigation, composite charge-sheet was filed against 49 accused persons for their complicity in the commission of various offences. The trial Court, after hearing the parties and going through the evidence on record, had passed the impugned judgment and order dated 30.09.2020, acquitting all the accused persons facing trial. He argued that appellants are only the prosecution witnesses in the Sessions Trial arising out of Case Crime No. 197 of 1992 and Case Crime No. 198 of 1992 and their depositions were recorded in the trial Court in the aforesaid Sessions Trial. His submission is that the appellants are neither complainants nor victims, therefore, they have no locus standi to challenge the impugned judgment and order dated 30.09.2020, hence the instant appeal is liable to be dismissed on this ground alone.
(5) Learned Additional Government Advocate for the State/ respondent no.1 has adopted the aforesaid arguments of the learned Counsel for the C.B.I and in addition, he argued that separate F.I.R., bearing Case Crime No. 201 of 1992, under Sections 395, 397 and 436 I.P.C. was lodged by the appellant no.1 in police station Ramjanam Bhoomi, district Faizabad, whereas appellant no.2 had lodged separate F.I.R., bearing Case Crime No. 216A of 1992, under Sections 395, 436, 295, 297 and 153A I.P.C. at Police Station Ramjanam Bhoomi, district Lucknow. The investigation of the aforesaid cases were conducted and after due investigation, as no incriminating material was found against the accused persons in Case Crime No. 216A of 1992 lodged by the appellant no.2, hence the Investigating Officer had filed final report on 28.04.1993, whereas in Case Crime No. 201 of 1992 lodged by the appellant no.1, charge-sheet was filed against the accused persons and it was committed to the Court of Sessions vide Sessions Trial No. 681 of 1994. The trial Court, after hearing the parties and going through the evidence on record, acquitted the accused persons vide judgment and order dated 02.02.1998. He argued that both i.e. final report dated 24.04.1993 filed in the case lodged by the appellant no.2 and the judgment and order dated 02.02.1998 filed in the case lodged by the appellant no.1 had attained finality as the same were not challenged by the appellants before any superior Court. Hence the appellants have no locus to maintain the instant appeal.
(6) Shri Raghvendra Singh, learned Senior Advocate appearing on behalf of respondent no.28 has also raised a preliminary objection regarding the locus of the appellants to maintain the instant appeal and has argued that in view of Section 372 of the Cr.P.C., no appeal shall lie from a judgment or order passed by a criminal Court except as provided by the Cr.P.C. or by any other law which authorises an appeal. Proviso to Section 372 of the Cr.P.C. gives a limited right to the victim to file an appeal in the High Court against any order of a criminal Court acquitting the accused or convicting them for a lesser offence or the imposition of inadequate compensation. He argued that the appellants are only the prosecution witnesses and they have no concern with the subject matter of the trial of the instant case as neither they are complainants of the case nor the injured persons nor charges as alleged by the appellants were framed in the instant case, therefore, appellants have no locus to challenge the acquittal of the accused persons from the charges levelled against them by preferring the instant appeal under Section 372 of the Cr.P.C.
(7) Shri Raghvendra Singh has further placed before us the judgment of the Apex Court in State (through Central Bureau of Investigation) Vs. Kalyan Singh (Former Chief Minister of Uttar Pradesh) and others : (2017) 7 SCC 444 and argued that in State (through Central Bureau of Investigation) Vs. Kalyan Singh (Former Chief Minister of Uttar Pradesh) and others (Supra), notifications issued by the State Government for transfer of cases to the Special Court, Lucknow by clubbing all 49 FIRs including F.I.R. No. 198 of 1992 were challenged by the appellants also by filing Special Leave to Appeal (Criminal) No. 2705 of 2015, wherein the appellants' Counsel was permitted to argue the matter treating them as an intervenor only on questions of law. His submission is that during the course of challenge of notifications in the aforesaid case, the Apex Court had only heard the appellants as intervenors and the appellants were not treated as ''victim' of the case, therefore, the appellants' claim that they are the ''victims' of the instant case, has no substance.
(8) It has further been stated by Sri Raghvendra Singh that on 07.12.1992, appellant no.1-Haji Maboob Ahmad had filed a written report, alleging therein that lakhs of Kar Sewak gathered at Ayodhya, while entering into the houses of minority communities, burnt and looted their houses including the house of appellants. On the basis of the aforesaid written report, Case Crime No. 201 of 1992 was registered. Thereafter, after due investigation, charge-sheet dated 15.05.1993 was filed before the Court concerned. After that the case was committed to the Court of Sessions vide Sessions Trial No. 681 of 1994 : State Vs. Lutawan and others, where charges under Section 395, 397, 436 I.P.C. were framed against the accused persons. The Additional District & Sessions Judge, Faizabad, after hearing the parties and going through the evidence on record including the statement of P.W.1-Hazi Mahboob (complainant/appellant no.1 herein) as well as the statement of the accused persons recorded under Section 313 Cr.P.C., acquitted the accused persons vide judgment and order dated 02.02.1998. This judgment and order dated 02.02.1998 was not challenged by the appellant no.1 before the superior Courts and kept mum/silent for about 22 years, however, all of a sudden, appellants woke up from deep slumber on 21.08.2020 and filed an application under Section 2 (wa) and Section 24 (8) of the Code of Criminal Procedure, 1973 before the Special Judge (Ayodhya Matter), Lucknow in Sessions Trial Nos. 344/1994 and 423 of 2017, which was rejected by a common order dated 25.08.2020, however, again the same was not challenged by the appellants before the superior Court. Thereafter, impugned order dated 30.09.2020 was passed. He argued that after about four months, the appellants have filed the instant appeal, challenging the judgment and order dated 30.09.2020. His submission is that order dated 02.02.1998 passed in Sessions Trial No. 681 of 1994 in connection with the separate F.I.R. i.e. F.I.R. No. 201 of 1992 lodged by the appellant no.1 himself and the order dated 25.08.2020 passed in Sessions Trial no. 344 of 1994 and 423 of 2017 in connection with the application preferred by the appellants under Section 2 (wa) and Section 24 (8) of the Cr.P.C. have attained finality, therefore, the same can be regarded as res judicata in view of the dictum of the Apex Court in State (through Central Bureau of Investigation) Vs. Kalyan Singh (Former Chief Minister of Uttar Pradesh) and others (Supra). Hence, on this count also, appellants have no locus to maintain the instant appeal.
(D) RESPONSE TO THE PRELIMINARY OBJECTION ON BEHALF OF THE APPELLANTS.
(9) Per contra, Shri Syed Farman Naqvi, learned Senior Advocate appearing on behalf of the appellants argued that Case Crime No. 201 of 1992 was lodged by the appellant no.1-Haji Mahboob Ahmed in district Faizabad, whereas appellant no.2-Syed Akhlaq Ahmad had filed Case Crime No. 216 of 1992 in relation to the burning of his house and looting his house-holds. In Case Crime Nos. 201 of 1992 lodged by the appellant no.1, investigation was concluded and charge-sheet was filed against the accused persons, however, the trial Court acquitted the accused persons by means of order dated 02.02.1998, whereas in Case Crime No. 216A of 1992 lodged by the appellant no.2 after investigation, a final report was submitted in the competent Court on 28.04.1993. He argued that in the instant case, the prosecution had examined appellant no.1-Haji Mahboob Ahmad as P.W.10 and appellant no.2-Syed Akhlaq Ahmad as P.W.53 and both of them along with other witnesses have categorically stated before the trial Court in the statements about all the facts, occurrence and their personal losses, but the trial Court erred in not considering the statements made by them and erroneously acquitted the accused persons by means of the impugned judgment and order dated 30.09.2020. He argued that neither the State Agency nor the C.B.I. has investigated the F.I.R. lodged by the appellants in a right perspective nor the State Agency or the C.B.I. has gone through the statements of the appellants recorded in the instant case as P.W.10 and P.W.53 before the trial Court nor the prosecution had placed the matter before the trial Court in right perspective, on account of which, the accused were acquitted by the trial Court. He argued that as per Section 2 (wa) of Cr.P.C. and Section 25 (8) of Cr.P.C., the appellants are the victims and as such, they have locus to challenge the impugned judgment and order passed by the trial Court.
(10) Shri Naqvi has drawn our attention to the order dated 25.08.2020 passed in Sessions Trial Nos. 344 of 1994, 423 of 20017, 796 of 2019 and 818 of 2020 and argued that before passing the impugned judgment, the appellants had filed an application before the trial Court to permit them to advance oral arguments at the time of arguments as the appellants are the victims but the trial Court rejected the same vide order dated 25.08.2020. Thereafter, the appellants have collected the documents for challenging the order dated 25.08.2020 but in the meanwhile, the impugned order dated 30.09.2020 has been passed and as such, appellants did not challenge the order dated 25.08.2020, rejecting the applications filed by them under Section 2 (wa) and 25 (8) of the Cr.P.C.
(11) Shri Naqvi has invited our attention to the judgment and order dated 06.07.2005 (Annexure No. RA-5) passed by the learned Single Judge of this Court in Criminal Revision No. 482 of 2003 : Dr. Murli Manohar Joshi Vs. State of U.P. and connected Criminal Revision No. 492 of 2003 : Ashok Singhal and Acharya Giriraj Kishore Vs. State of U.P., Criminal Revision No. 493 of 2003 : Miss Uma Bharti Vs. State of U.P., Criminal Revision No. 494 of 2003 : Vinay Katiyar Vs. State of U.P., Criminal Revision No. 495 of 2003 : Vishnu Hari Dalmia and Sadhvi Ritambhara Vs. State of U.P. and Criminal Revision No. 619 of 2003 : Haji Mahboob Ahmad and Mohammad Siddiq alias Hatiz Mohammad Siddiq Vs. State of U.P. and others and argued that in the aforesaid criminal revisions, the order dated 19.09.2003 passed by the Special Judicial Magistrate, Raebareli in Criminal Case No. 768 of 2003 : State Vs. Lal Krishna Advani and others, whereby direction was issued to frame charge against Dr. Murli Manohar Joshi, Ashok Singhal, Vishnu Hari Dalmia, Acharya Giriraj Kishore, Miss Uma Bharti and Sadhvi Ritambhara under Sections 147, 149, 153-A, 153-B and 505 I.P.C. and discharged Shri Lal Krishna Advani of these charges, were challenged. He argued that by means of the judgment and order dated 06.07.2005, the learned Single Judge of this Court had also considered the arguments of the accused persons/ revisionists with regard to the maintainability of Criminal Revision No. 619 of 2013 filed by the private persons i.e. appellant no.1 herein and one Mohammad Siddiq alias Hafiz Mohammad Siddiq. The learned Single Judge, after great discussion on the point of the maintainability of the criminal revision filed by the appellant no.1 and one another, had opined that the criminal revision filed by the appellant no.1 is maintainable and accordingly the same was admitted. In these backdrops, his submission is that once earlier the revision filed by the appellant no.1 was declared as maintainable and his revision was admitted, therefore, the appellants in the present case also have locus to challenge the impugned judgment and order passed by the trial Court.
(12) In support of his submission, learned Senior Counsel has relied upon the judgments of the Apex Court in Sukhdev Singh Vs. State of Punjab : 1982 (2) SCC 439; Balraj Vs. State of U.P. : 1994 (4) SCC 29; Giani Ram Vs. State of Haryana and others : AIR 1995 SC 2452; Baldev Singh and another Vs. State of Punjab : AIR 1996 SC 372; Shri Bodhisattwa Gautam Vs. Miss. Subhra Chakraborty : AIR 1996 SC 922; Rudul Sah Vs. State of Bihar and another : AIR 1983 SC 1086; SAHELI, a Women's Resources Centre through Ms. Nalini Bhanot and others Vs. Commissioner of Police, Delhi and others : AIR 1990 SC 513; Ashok K. Johri Vs. State of U.P. : AIR 1997 SC 610; and Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others : (2004) 4 SCC 158.
(13) At this stage, so far as the plea of the appellants that since in earlier revision filed by the appellants, the revision filed by the appellant no.1 and one another was declared as maintainable and the same was admitted by the learned Single Judge of this Court by means of the order dated 06.07.2005, is concerned, Shri Raghvendra Singh, learned Senior Advocate, appearing on behalf of the respondent no.28 argued that while passing the order dated 06.07.2005, the learned Single Judge had not observed that the revisionists (appellant no.1 herein and another revisionist) are the ''victims' of the case, therefore, the appellants' plea in this regard has no substance and is liable to be rejected.
(E) ANALYSIS (14) We have examined the rival contentions of the learned Counsel for the parties and gone through the impugned judgment as well as material brought on record on the preliminary question raised before this Court regarding the locus of the appellants to maintain the instant appeal under Section 372 Cr.P.C.
(15) Before we proceed further, it would be apt to note that word 'victim' is defined in Section 2(wa) of the Cr.P.C., which was introduced vide the Cr.P.C. (Amendment) Act, 2008 w.e.f. 31.12.2009 and the same reads as under :-
"victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir;
(16) The meaning and purport of the aforesaid word ''victim' has been considered by a Full Bench of this Court in the case of Manoj Kumar Singh v. State of U.P. & ors. : 2016 (97) ACC 861, wherein it has been held that "70. From the discussions that have been made above, it is clear that the proviso of section 372 is an exception to the general law and same confers on a victim a right to appeal against acquittal, which is subject to the grant of leave by the Court. The first part of the definition of ''victim' as given under section 2(wa) (i.e. "Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged), is required to be construed in its literal sense and no liberal interpretation is required. Accordingly, only such person would be treated as "victim', who is the subject-matter of trial being direct sufferer of crime in terms of loss or injury caused to his own body, mind, reputation and property and such loss or injury is one of the ingredient of the offence for which the accused person has been charged and, therefore, any other person cannot be accepted as victim within the first part of section 2 (wa) for the purposes of maintaining appeal. The second part that is "includes his or her guardian and Legal Heir" would come into play when the actual sufferer is absent or suffers disability.
71. In other words, victim means the actual sufferer of offence (receiver of harm caused by the alleged offence) and no person other than actual receiver of harm can be treated as victim of offence, so as to provide him/her right to prefer appeal under the proviso of section 372, though, in his or her absence or disability, his "legal heir" or "guardian" would qualify as victim and have a right to appeal. A person who claims himself to be ''guardian' or ''legal heir' of actual victim (direct sufferer), would be able to maintain appeal provided he establishes his claim as such before the Court in his application by disclosing his particulars; relationship with the direct sufferer; and the grounds on which such claim of being "legal heir" or "guardian" is based. In the light of the discussion made above, the ratio of Division Bench of this Court in the case of Edal Singh (supra) is in tune with the definition of ''victim' as provided under section 2(wa) of the Code of Criminal Procedure. The reference is answered accordingly.
72. Let the order as well as the record be placed before appropriate Bench dealing with the "Leave to Appeal" application."
(emphasis supplied) (17) It is true that the right to appeal against the acquittal of the accused is not a mere matter of procedure but is a substantive right of the ''victim'.
(18) However, in the instant case, the question is whether the appellants are the victims of the case or not and they have locus to file the instant appeal under Section 372 Cr.P.C. or not.
(19) The contention of the appellants is that the prosecution had examined them as P.W.10 and P.W.53, respectively, in the instant case and they had narrated all the facts, occurrence and their personal losses in their depositions before the trial Court, but even then the trial Court had erroneously acquitted the accused persons without considering the depositions of the appellants by means of the impugned judgment, therefore, the appellants being victims have every right/locus to challenge the impugned judgment and order by filing the instant appeal under Section 372 Cr.P.C.
(20) To counteract the aforesaid contention of the appellants, it has been pleaded by the respondents that the appellants are only the prosecution witnesses of the case and while passing the impugned judgment and order, the trial Court had tested their depositions to the other evidences available on record and if the trial Court found the appellants' depositions were not trustworthy or reliable while considering the other evidences on record, it cannot be presumed that the appellants are the victims. They contended that allegations so levelled by the appellants were not the subject matter of the trial but the allegations of the appellants that their houses were burnt and their house-holds were looted by the unknown Kar Sewaks assembled in Ayodhya on 06.12.1992 were tested by the trial Court in a separate sessions trial i.e. Sessions Trial No. 681 of 1994 arising out of Case Crime No. 201 of 1992 filed by the appellant no.1, wherein the trial Court, vide judgment and order dated 02.02.1998, acquitted the accused persons, however, the said judgment and order dated 02.02.1998 has not been challenged by the appellants till date. Moreso, application filed by the appellants under Section 2(wa) and 24 (8) Cr.P.C., during the pendency of Sessions Trial No. 344 of 1994 and 423 of 1994 arising out of Case Crime No. 197 of 1992 and 198 of 1992, respectively, before the trial Court, was also rejected by the trial Court vide order dated 25.08.2020, which has also attained finality as the same has not been challenged before any superior Court till date. Thus, the orders dated 02.02.1998 and 25.08.2020 can be regarded as res judicata and the instant appeal is liable to be dismissed on the ground of lack of locus of the appellants to file the instant appeal.
(21) Undisputed facts are that impugned judgment and order has been passed by the trial Court on the charges framed in Sessions Trial Nos. 344 of 1994, 344-B of 1994, 423 of 2017, 796 of 2019 and 818 of 2020. Appellants' allegations of burning their houses and looting house-hold articles by unknown Kar Sewaks assembled in the year 1992 were not tested/ examined by the trial Court in the impugned judgment and order but the appellants for the aforesaid allegations had filed separate F.I.Rs., bearing Case Crime No. 201 of 1992, under Sections 395, 397, 436 I.P.C. and Case Crime No. 216A of 1992, under Sections 395, 436, 295, 297 and 153A IPC in police station Ram Janam Bhoomi, district Faizabad, respectively. In Case Crime No. 216A of 1992, the Investigating Officer, after due investigation, had filed final report on 28.04.1993, whereas allegations made in Case Crime No. 201 of 1992 was tried by the trial Court in Sessions Trial No. 681 of 1994 and vide judgment and order dated 02.02.1998, the trial Court acquitted the accused persons. Both i.e. final report dated 28.04.1993 submitted against the accused persons and the order of acquittal dated 02.02.1998, have not been challenged by the appellants in any superior Courts and the same attained finality. However, the prosecution had examined the appellants in Sessions Trial Nos. 344 of 1994, 344-B of 1994, 423 of 2017, 796 of 2019 and 818 of 2020 as P.W.10 and P.W.53. During pendency of these sessions trials and after recording their depositions therein, appellants had filed application under Section 2(wa) and Section 24 (8) of the Cr.P.C. on 21.08.2020 before the Special Judge (Ayodhya Matter), Lucknow, who, vide judgment and order dated 25.08.2020, rejected the aforesaid application. The appellants did not challenge the order dated 25.08.2020 (supra). Thereafter, the trial Court has passed the judgment and order dated 30.09.2020, which is impugned in the instant appeal, acquitting the accused persons from all the charges levelled against them. Now, the appellants have filed the instant appeal.
(22) From the aforesaid undisputed facts and circumstances of the case, it is quite apparent that accused persons were tried by the trial Court in Sessions Trial Nos. 344 of 1994, 344-B of 1994, 423 of 2017, 796 of 2019 and 818 of 2020 for the F.I.R. lodged by the police of Police Station Ramjanam Bhoomi in Case Crime No. 197 of 1992 and 198 of 1992 and the allegations so made by the appellants were not the part of the charges upon which the accused persons were tried by the trial Court and the impugned judgment and order dated 30.09.2020 was passed, rather the allegations so made by the appellant no.1 herein were tried in a separate Sessions Trial No. 681 of 1994 arising out of the F.I.R. lodged by him i.e. Case Crime No. 201 of 1992, under Sections 395, 397, 436 I.P.C., in which accused persons were acquitted by means of the judgment and order dated 02.02.1998, whereas in the F.I.R. i.e. Case Crime No. 216 A of 1992 lodged by the appellant no.2, final report was submitted on 28.04.1993. Therefore, in view of the judgment of the Full Bench of this Court in Manoj Kumar Singh Vs. State of U.P. (supra), the appellants herein cannot be treated as ''victims' of the instant case. Thus, this Court is of the considered view that the appellants have no locus to challenge the impugned judgment and order dated 30.09.2020 passed by the trial Court.
(23) At this juncture, it would also be apt to note that as stated hereinabove, judgment and order dated 02.02.1998 passed in Sessions Trial No. 681 of 1994 arising out of Case Crime No. 201 of 1992 lodged by the appellant no.1 and final report dated 28.04.1993 filed in Case Crime No. 216A of 1992 lodged by appellant no.2, have attained finality, therefore, this Court is of the view that both the orders dated 02.02.1998 and 28.04.1993 can be regarded as res judicata in view of the judgment of the Apex Court in State Vs. Kalyan Singh and others (supra).
(24) So far as the plea of the appellants that since Criminal Revision No. 619 of 2003 was admitted by the learned Single Judge by means of order dated 06.07.2005, hence they can challenge the impugned judgment and order passed by the trial Court is concerned, it transpires from perusal of the order dated 06.07.2005 passed by the learned Single Judge that four points for adjudication of the issue of revision were framed and considered by the learned Single Judge, out of which point no.1 was that ''whether Criminal Revision No. 619 of 2003 filed by Haji Mahboob Ahmad and Mohammad Siddiq alias Hafiz Mohammad Siddiq, both private persons, is maintainable' and while considering it, the learned Single Judge exercised the suo moto revisional powers as enshrined in him on the strength of the various dictum of the Apex Court, however, in nowhere while considering point no.1, the learned Single Judge had opined that the revisionists are the victims, hence the revision is maintainable. Thus, this Court is of the view that arguments of the learned Senior Counsel appearing on behalf of the appellants in this regard have no force and are, accordingly, rejected.
(25) The judgments relied upon by the learned Senior Counsel appearing on behalf of the appellants are distinguishable from the facts and circumstances of the present case.
(F) CONCLUSION (26) Considering the facts and circumstances of the case and also taking into consideration the dictum of the Full Bench of this Court in Manoj Kumar Singh (supra), this Court is of the view that the appellants cannot be treated as ''victims', therefore, they have no locus to maintain the instant appeal.
(27) In view of the foregoing discussion, this Court is of the opinion that the instant criminal appeal filed on behalf of the appellants under Section 372 Cr.P.C., under the facts and circumstances of the case, is liable to be dismissed on the ground of non-availability of the locus of the appellants to challenge the impugned judgment and order dated 30.09.2020 passed by the trial Court, hence the same is, accordingly, dismissed.
(Mrs. Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 09th November, 2022
Ajit/Lakshman