# Haji Mahboob Ahmad & Anr v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-09
- **Case number:** Criminal Appeal U/S 372 Cr.P.C. No. 79 of 2022
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haji-mahboob-ahmad-anr-v-state-of-u-p-ors-47798
- **Pages:** 12

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Section - 2(w)(a), 24 (8), 173, 313,
372, - Indian Penal Code, 1860 - Sections
93, 114, 147, 149, 120-B, 114, 147, 153-A,
153-B, 201, 238, 295, 295-A, 297, 332,
336, 337, 338, 392, 394, 395, 427 & 505 (I)
(b) - Criminal Appeal - against acquittal - two
FIR - with allegations that, the disputed
structure, popularly known as 'Ram Janam
Bhoomi/Badri Masjid' at Ayodhya was demolished
by a group of persons - definition of victim -
appellants application u/section 2 (wa) and 24 (8)
was rejected by trial court - which was never
challenged before superior court - trial court
acquitted all the accused persons - court held
that, - since, the order of trial court while
rejecting the applications of appellants attained
finality - as such in the light of judgement of full
bench court i.e. 'Manoj Kumar Singh Vs St. of UP"
appellants herein cannot be treated as 'Victims' -
thus, they have no locus to challenged the
impugned judgment - accordingly, appeal is
dismissed. (Para - 22, 26, 27)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

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162 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 11 ILRA 162
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal U/S 372 Cr.P.C. No. 79 of 2022

Haji Mahboob Ahmad & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Khaleeq Ahmad Khan, Mohemmed Amir
Naqvi, Najam Zafar, Rafat Farooqui

Counsel for the Respondents:
G.A., Shiv P. Shukla

Criminal Law - Criminal Procedure Code,
1973- Section - 2(w)(a), 24 (8), 173, 313,
372, - Indian Penal Code, 1860 - Sections
93, 114, 147, 149, 120-B, 114, 147, 153-A,
153-B, 201, 238, 295, 295-A, 297, 332,
336, 337, 338, 392, 394, 395, 427 & 505 (I)
(b) - Criminal Appeal - against acquittal - two
FIR - with allegations that, the disputed
structure, popularly known as 'Ram Janam
Bhoomi/Badri Masjid' at Ayodhya was demolished
by a group of persons - definition of victim -
appellants application u/section 2 (wa) and 24 (8)
was rejected by trial court - which was never
challenged before superior court - trial court
acquitted all the accused persons - court held
that, - since, the order of trial court while
rejecting the applications of appellants attained
finality - as such in the light of judgement of full
bench court i.e. 'Manoj Kumar Singh Vs St. of UP"
appellants herein cannot be treated as 'Victims' -
thus, they have no locus to challenged the
impugned judgment - accordingly, appeal is
dismissed. (Para - 22, 26, 27)

Appeal dismissed. (E-11)

List of Cases cited:
1. Ashok Singhal and Acharya Giriraj Kishore Vs St. of
U.P., Criminal Revision No. 492 of 2003

2. Dr. Murli Manohar Joshi Vs St. of U.P., Criminal
Revision No. 482 of 2003, (2017) 7 SCC 444

3. St. Vs Pawan Kumar Pandey & ors., Lucknow in
Sessions Trial No. 344 of 1994

4. St. Vs Lal Krishna Advani & ors., Case Crime No.
197 of 1992 and Sessions Trial No. 423 of 2017

5. St. Vs Lutawan & ors., Sessions Trial No. 681 of
1994

6. Manoj Kumar Singh v. St. of U.P. & ors. : 2016
(97) ACC 861

7. Miss Uma Bharti Vs St. of U.P., Criminal Revision
No. 493 of 2003

8. Haji Mahboob Ahmad and Mohammad Siddiq @
Hatiz Mohammad Siddiq Vs St. of U.P. & ors.,
Criminal Revision No. 619 of 2003

9. St. Vs Lal Krishna Advani & ors., Criminal Case No.
768 of 2003

10. Sukhdev Singh Vs St. of Punj., 1982 (2) SCC 439

11. Balraj Vs St. of U.P., 1994 (4) SCC 29

12. Giani Ram Vs St. of Har. & ors., AIR 1995 SC
2452

13. Baldev Singh & anr. Vs St. of Pun., AIR 1996 SC
372

14. Shri Bodhisattwa Gautam Vs Miss. Subhra
Chakraborty, AIR 1996 SC 922

15. Rudul Sah Vs St. of Bihar & anr., AIR 1983 SC
1086

16. St. (through Central Bureau of Investigation) Vs
Kalyan Singh (Former Chief Minister of Uttar Pradesh)
& ors.

17. Vinay Katiyar Vs St. of U.P., Criminal Revision No.
494 of 2003

18. Vishnu Hari Dalmia and Sadhvi Ritambhara Vs St.
of U.P., Criminal Revision No. 495 of 2003
11 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P.& Ors.
163
19. SAHELI, a Women's Resources Centre through
Ms. Nalini Bhanot & ors. Vs Commissioner of Police,
Delhi & ors., AIR 1990 SC 513

20. Ashok K. Johri VsSt. of U.P., AIR 1997 SC 610

21. Zahira Habibulla H. Sheikh & anr. Vs St. of Guj. &
ors., (2004) 4 SCC 158.

(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)/93S.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
164 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
11 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P.& Ors.
165

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.
166 INDIAN LAW REPORTS ALLAHABAD SERIES
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-
11 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P.& Ors.
167
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.2Syed 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
168 INDIAN LAW REPORTS ALLAHABAD SERIES
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
11 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P.& Ors.
169
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
170 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
11 All. Haji Mahboob Ahmad & Anr. Vs. State of U.P.& Ors.
171
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 household 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
172 INDIAN LAW REPORTS ALLAHABAD SERIES
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
11 All. Smt. Munni Devi Vs. State of U.P.& Ors.
173
judgment and order dated 30.09.2020
passed by the trial Court, hence the same is,
accordingly, dismissed.
----------
(2022) 11 ILRA 173
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.09.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal U/S 372 Cr.P.C. No. 1273 of
2022

Smt. Munni Devi ...Appellant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Appellant:
Sri Ram Kumar Patel, Sri Nagendra Singh
Gautam

Counsel for the Opposite Parties:
G.A.

Criminal Law
- Criminal Procedure
Code, 1973 - Section - 372 - Indian
Penal Code, 1860 -Sections 201 & 302 -
Scheduled Castes and Scheduled Tribes
Prevention of Atrocities Act,1989
-
Sections 3(2) & (5) - Criminal Appeal -
against order of Acquittal - FIR - offence of
murder - prosecution has tried to show
during the course of trial that there was a
demand of repayment of loan amount on
behalf of accused persons and in that
connection
some
hot-talk
and
scuffle
between
the
accused
persons
-
but,
prosecution has utterly fails to proved the
guilt of accused persons in commission of
charged crime - prosecution has completely
failed to prove beyond doubt that accused
were committed offence - held, Appeal
stands dismissed.(Para - 20, 21)

Appeal dismissed. (E-11)

List of Cases cited:
1. Rajesh Prasad Vs St. of Bihar & anr. (2022 (3)
SCC 471),

2. Bannareddy & ors. Vs St. of Karn. & ors.
(2018 vol. 5 SCC 790),

3. Jayamma & anr. Vs St. of Karn.(2021 vol. 6
SCC 213),

4. Sharad Birdhichand Sarda Vs St. of Mah.
(1984 (4) SCC 16),

(Delivered by Hon'ble Vivek Kumar Birla, J.
&
Hon'ble Rahul Chaturvedi, J.)

1. Heard Shri Ram Kumar Pal,
learned counsel for the appellant and Shri
Kailash Prakash Pathak, learned AGA
representing the State and also perused the
record.

2.