# Shamima & Ors. Revisionists v. State of U.P. & Anr. 150 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 1 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-03
- **Case number:** Criminal Revision No. 1237 of 2024
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamima-ors-revisionists-v-state-of-u-p-anr-150-indian-law-reports-allahabad-54873
- **Pages:** 6

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973 - Section 227 - Discharge -
Abuse of process of law - Co-accused of
the same Case crime number have been
acquitted - Effect - Discharge application
of other co-accused was rejected
-
Validity challenged - Held, once for
identical charges and on the basis of the
identical
evidence
based
on
the
testimonies of the identical witnesses, coaccused 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. (Para 22)

Criminal Revision allowed. (E-1)

## Text

1 All. Shamima & Ors. Vs. State of U.P. & Anr.
149
making such inquiry as it deems fit, order
the juvenile in conflict with law to be sent
to a special home.

(4)The Board shall while making a
supervision order under sub-section (3), explain
to the juvenile and the parent, guardian or
other fit person or fit institution, as the case
may be under whose care the juvenile has been
placed, the terms and conditions of the order
and shall forthwith furnish one copy of the
supervision order to the juvenile, the parent,
guardian or other fit person or fit institution, as
the case may be, the sureties, if any, and the
probation officer.

Prior to its substitution, Clause (g)
read as under:-(g) make an order directing the
juvenile to be sent to a special home,-(i) in the
case of juvenile, over seventeen years but less
than eighteen years of age for a period of not
less than two years;(ii) in case of any other
juvenile for the period until he ceases to be a
juvenile:Provided that the Board may, if it is
satisfied that having regard to the nature of the
offence and the circumstances of the case it is
expedient so to do, for reasons to be recorded,
reduce the period of stay to such period as it
thinks fit.".

88. As the appellants Devendra Kumar
alias Jhunna and Avdhesh have attained the age
of majority many decades ago, no purpose of
law will be served to keep them in special and
juvenile home.

89. Apart from that the appellants
Devendra Kumar alias Jhunna and Avdhesh are
directed to deposit Rs.50,000/- fine before the
court concerned, which will be payable as
compensation to Vimla Devi-PW-4 the wife of
the deceased Shiv Narain and in case of her
death, the said amount will be paid to her legal
heirs to the satisfaction of trial court.

90. Appeal stands partly allowed in
respect of appellants Devendra Kumar @
Jhunna and Avdhesh, as the sentence awarded
to them by trial court is quashed and they have
been dealt with under Section 15 of Juvenile
Justice (Care and Protection of Children) Act,
2000. Appeal is dismissed in respect of convict
Krishna Kumar @ Chuttan and Rajmun.

91. As conviction and sentence passed by
learned court below in respect of accused Krishan
Kumar alias Chuttan and Rajmun is affirmed in
present appeal by this judgment and they have
been enlarged on bail during the pendency of
appeal, they are directed to surrender before the
trial court to serve the sentence awarded by court
below in impugned judgment within two weeks
and in case of their non-appearance the trial court
shall ensure their arrest by issuing appropriate
process against them, and on their appearance they
will be sent to jail custody for undergoing the
sentence as awarded by trial court and affirmed by
this Court.

92. Let a copy of this judgment be sent to
court below/ Session Judge, as the case may be
for necessary compliance.

93. This court appreciates the valuable
assistance and hard work which has been put in
by Sri Ajay Kumar Pandey, learned Amicus
Curiae, we quantify his fee as Rs.25,000/-
which shall be paid to him by the High Court
Legal Services Authority, Allahabad High
Court. Learned Registrar General of the High
Court will oversee the payment.
----------
(2025) 1 ILRA 149
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2025
BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Criminal Revision No. 1237 of 2024

Shamima & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties
150 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionists:
Kali Charan Yadav

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973 - Section 227 - Discharge -
Abuse of process of law - Co-accused of
the same Case crime number have been
acquitted - Effect - Discharge application
of other co-accused was rejected
-
Validity challenged - Held, once for
identical charges and on the basis of the
identical
evidence
based
on
the
testimonies of the identical witnesses, coaccused 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. (Para 22)

Criminal Revision allowed. (E-1)

(Delivered by 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.
1 All. Shamima & Ors. Vs. State of U.P. & Anr.
151

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 coaccused (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
152 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Shamima & Ors. Vs. State of U.P. & Anr.
153
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
154 INDIAN LAW REPORTS ALLAHABAD SERIES
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, coaccused 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 setaside. 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.
----------
(2025) 1 ILRA 154
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.01.2025
BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
SHUKLA, J.

Criminal Revision No. 5217 of 2023

Abbas & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties