Allahabad High Court
Shamima And 4 Others vs State Of U.P. And Another on 3 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2025:AHC:1865 Court No. - 81 Case :- CRIMINAL REVISION No. - 1237 of 2024 Revisionist :- Shamima And 4 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kali Charan Yadav Counsel for Opposite Party :- G.A. Hon'ble Manjive Shukla,J.
1. Heard Sri Pratish Upadhyay, Advocate holding brief of Sri Kali Charan Yadav, learned counsel for the revisionists and learned A.G.A. appearing for the State.
2. The instant Criminal Revision arises out of an order dated 03.02.2024 passed by the learned Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), Basti in Special Sessions Trial No. 2800039 of 2016 (State Vs. Mohit and Others) whereby, the revisionists' application filed under Section 227 Cr.P.C. for discharge had been rejected.
3. Facts of the case, in brief, are that an F.I.R. was lodged under Sections 363, 366 I.P.C. and Section 7/8 of P.O.C.S.O. Act in Police Station, Parasrampur, District Basti which was registered as Case Crime No. 554 of 2015. In the F.I.R., wife of Hamid Ali i.e. Safia alias Shafiqun Nisha, Mohid, Gyasuddin, Shariffuddin @ Babbu, Irshad, Mehsar, Samima, Taudeen, Bauhar and Gasili were named and it was alleged that they enticed Razia Khatoon and kidnapped her. The alleged victim, Razia Khatoon and others filed a Criminal Misc. Writ Petition No. 19293 of 2015 (Rajiya Khatoon and Others Vs. State of U.P. and Others), wherein Rajiya Khatoon claimed that she is major and is living with the main accused Taudeen and a Division Bench of this Court passed an order on 10.08.2015 whereby it was provided that the accused/petitioners shall not be arrested till submission of the police report under Section 173(2) Cr.P.C. The police filed charge-sheet under Section 173 (2) Cr.P.C. and arrested the main accused Taudeen, Gyasuddin and Safia alias Shafiqun Nisha.
4. The police filed charge-sheet against the main accused, Taudeen under Sections 363, 366, 376, 120-B, 506 I.P.C. and under Section 3/4 of the P.O.C.S.O. Act and charge-sheet against the other accused including the present revisionists was filed under Sections 363, 366, 120-B, 506 I.P.C. and Section 16/7 of the P.O.C.S.O. Act.
5. The present revisionists, after filing of the aforesaid charge-sheet against them, filed a petition under Section 482 Cr.P.C bearing Crl. Misc. Application No. 22868 of 2016 (Shamima and Others Vs. State and Another) and this Court was pleased to pass an interim order on 01.08.2016 whereby it was provided that no coercive steps shall be taken against the applicants in Case Crime No. 554 of 2015.
6. Since Taudeen, Gyasuddin and Safia alias Shafiqun Nisha were already arrested, therefore sessions trial in respect of the said accused was separated and was numbered as Special Sessions Trial No. 1000066 of 2015 (State of U.P. Vs. Taudeen and two others) and in respect of other accused of Case Crime No. 554 of 2015, Special Sessions Trial was numbered as 2800039 of 2016 (State Vs. Mohid and Others). It is worth to note it down at this stage that the evidence collected by the police and the witnesses relied on are identical in both the aforesaid criminal trials.
7. The Special Sessions Trial No. 1000066 of 2015 (State of U.P. Vs. Taudeen and two Others) had been concluded and vide judgement and order dated 22.08.2023 passed by the learned Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), Basti, the main accused of the Case Crime No. 554 of 2015 i.e. Taudeen and other two co-accused, who are identically placed to that of the present revisionists, have been acquitted from the charges levelled against them.
8. The trial court in its judgement and order dated 22.08.2023 had considered the testimonies of the alleged victim, her mother and other witnesses and found that none of the witnesses have supported the prosecution story and on that basis, had exonerated the main accused and other two accused (identically placed to that of the revisionists) from all the charges.
9. The revisionists after the conclusion of the aforesaid trial vide judgement and order dated 22.08.2023, pressed their petition filed under Section 482 Cr.P.C. which was pending before this Court and this Court disposed of the Criminal Misc. Application No. 22868 of 2016 vide order dated 07.11.2023 whereby applicants were directed to move an appropriate application for discharge before the trial court with a direction that the trial court shall decide the said application within two months. Pursuant to the aforesaid order dated 07.11.2023, the revisionists filed application for discharge under Section 227 Cr.P.C. wherein they categorically stated that on the basis of the identical evidence on which they are to be tried, the trial of the main accused Taudeen and other two co-accused (identically placed to that of the revisionists) had already been concluded vide judgement and order dated 22.08.2023 wherein accused have been acquitted, therefore now there is no occasion for the trial court to proceed with the trial against the revisionists and as such they are liable to be discharged from the charges levelled against them. The revisionists in their application for discharge categorically stated that the charge-sheet has been filed against the present revisionists on the identical charges, identical evidence has been relied on and same witnesses are sought to be produced who were produced in the trial of the main accused and two other accused i.e. Special Trial No. 1000066 of 2015, therefore once the main accused and other two co-accused have been exonerated from the charges vide judgement and order dated 22.08.2023, the revisionists are also liable to be discharged from the charges levelled against them.
10. The learned Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), Basti had rejected the application filed by the revisionists under Section 227 Cr.P.C. on the ground that at the time of considering the case for discharge, the trial court can only consider the evidence collected by the police and charge-sheet filed before the court. The trial court had further opined that since the police had filed charge-sheet against the revisionists in Case Crime No. 554 of 2015 under Sections 363, 366, 120-B, 506 I.P.C. and under Section 16/7 of P.O.C.S.O. Act on the basis of evidence, therefore the application filed by the revisionists for discharge is liable to be rejected.
11. Learned counsel appearing for the revisionists has argued that once it is admitted on record that the main accused of Case Crime No. 554 of 2015 i.e. Taudeen and two other co-accused i.e. Gyasuddin and Safia alias Shafiqun Nisha (identically placed to that of the revisionists) have already been tried and acquitted for the identical charges and on the basis of the identical evidence, there is no occasion for the trial court to reject the application filed by the revisionists (other co-accused) for discharge, as that would amount to abuse of the process of the court. Learned counsel appearing for the revisionists has further argued that the alleged victim had already married to the main accused i.e. Taudeen and out of the wedlock, they have one son who, as on date, is aged about seven years, therefore there is no justifiable reason for not discharging the other co-accused of the Case Crime No. 554 of 2015.
12. It has been vehemently argued that the judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015 though has been referred by the trial court in the impugned order dated 03.02.2024 but has not been considered at all. It has also been argued that once there is no denial to the fact that the charges and evidence against the revisionists are identical and witnesses named in the charge-sheet are also same, on the basis of which main accused and other co-accused facing the same charges have been acquitted, there cannot be any justifiable reason for the trial court to not consider the judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015 while deciding the application for discharge filed by the revisionists.
13. Learned counsel appearing for the revisionists has lastly argued that this revision is liable to be allowed and proceedings of the Special Sessions Trial No. 2800039 of 2016 (State Vs. Mohid and Others) are liable to be quashed otherwise if for the same charges, on same evidence and on the testimony of the same witnesses, the trial against the revisionists is allowed to be proceeded, that would amount to abuse of the process of the court as ultimately the revisionists are bound to be exonerated from the charges levelled against them.
14. Learned A.G.A., while arguing for the State, has not disputed the fact that the Special Sessions Trial No. 1000066 of 2015 in respect of the main accused of the Case Crime No. 554 of 2015 i.e. Taudeen and two other co-accused i.e. Gyasuddin and Safia alias Shafiqun Nisha (identically placed to that of the present revisionists) had been decided by the trial court vide judgement and order dated 22.08.2023 wherein the charges, evidence and witnesses relied on by the prosecution are identical to that of the Special Sessions Trial No. 2800039 of 2016 and those accused have been exonerated from all the charges.
15. Learned A.G.A. appearing for the State has argued that while deciding the application for discharge, filed under Sections 227 Cr.P.C., only the charge-sheet and evidence collected by the police can be taken into account and therefore the trial court while not considering the impact of the judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015 (State of U.P. Vs. Taudeen and two others) while deciding the application for discharge, had acted in absolutely legal manner. It has further been argued that there is neither any illegality nor any infirmity in the impugned order dated 03.02.2024 passed in Special Sessions Trial No. 2800039 of 2016.
16. I have considered the arguments advanced by the learned counsel appearing for the revisionists and learned A.G.A. appearing for the State. I have also perused the contents of the impugned order dated 03.02.2024 passed in Special Sessions Trial No. 2800039 of 2016 and the judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015.
17. This Court takes note of the fact, in categorical terms, that the State has not disputed that one Taudeen (main accused) and two other co-accused i.e. Gyasuddin and Safia alias Shafiqun Nisha (identically placed to that of the present revisionists) have already been tried for identical charges, on the basis of identical evidence and on the testimonies of the identical witnesses related to Case Crime No. 554 of 2015 and the trial had been concluded vide judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015 whereby accused have been exonerated from the charge.
18. Now this Court proceeds to consider the provisions of the Sections 227, 228 and 229 Cr.P.C. which are extracted as under:
"227. Discharge-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.
229. Conviction on plea of guilty.-If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon."
19. This Court finds that Section 227 Cr.P.C. provides that if, upon consideration of the record of the case and the documents submitted therewith and after hearing submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.
20. This Court is of the view that if for the same case crime number, two separate trials are conducted and in the first trial on the basis of the identical charges, on identical evidence and on the basis of the testimonies of the identical witnesses, few accused have been acquitted from the charges by the judgement passed in the first trial then the trial court while dealing with the second trial for other accused on the identical charges, on the identical evidence and on the basis of the testimonies of the identical witnesses cannot say that the judgement rendered in the first trial shall not be the part of the record of the other connected second trial.
21. This Court is of the firm view that the trial court while dealing with the application filed by the revisionists under Section 227 Cr.P.C. for discharge must have considered the judgement and order dated 22.08.2023 passed in Special Sessions Trial No. 1000066 of 2015 as part of the record of the case as the said judgement had been rendered in respect of the same case crime number for identical charges, on the basis of identical evidence and on the basis of the testimonies of the identical witnesses.
22. This Court is also of the view that once for identical charges and on the basis of the identical evidence based on the testimonies of the identical witnesses, co-accused of the same case crime number have been acquitted from the charges then if other co-accused are permitted to be tried by the trial court without there being any new evidence on record, there would be one and the only one conclusion i.e. their acquittal from the charges, as such allowing to proceed the second trial would amount to abuse of the process of the Court.
23. Once it is admitted by the State that the charges levelled against the accused in Special Sessions Trial No. 1000066 of 2015 are identical and the evidence relied on and the witnesses are also identical to that of the charges levelled against the accused and evidence relied on and witnesses in Special Sessions Trial No 2800039 of 2016, there was no occasion for the trial court to reject the application filed by the revisionists for their discharge and to further proceed with the trial.
24. In view of the aforesaid reasons, this revision is allowed. The impugned order dated 03.02.2024 passed by the learned Additional Sessions Judge/Special Judge (P.O.C.S.O. Act) Basti in Special Sessions Trial No. 2800039 of 2016 is set-aside. The present revisionists who are accused in Special Sessions Trial No 2800039 of 2016 are hereby discharged and the entire proceedings of the Special Sessions Trial No. 2800039 of 2016 are hereby quashed.
Order Date :- 3.1.2025 A. Mandhani