MOHARRAMversusSTATE OF U.P. AND 3 OTHERS

              HIGH COURT OF JUDICATURE AT ALLAHABAD

                    CRIMINAL REVISION No. - 6541 of 2025

Moharram
                                                                       .....Revisionist(s)
                                        Versus
State Of U.P. And 3 Others
                                                                   .....Opposite Party(s)

Counsel for Revisionist(s)                       :   Ajahar Zamil, Juned Alam
Counsel for Opposite Party(s)                    :   G.A.

Court No. - 87
                          HON'BLE ABDUL SHAHID, J.

1. Heard Sri Yakoob Ali, holding brief of Sri Ajahar Zamil, learned counsel for the
revisionist and the learned AGA for the State. None is present for opposite party/first
informant despite service sufficient.

2. The present criminal revision has been preferred against the impugned order dated
17.9.2025, passed by learned Special Judge, POCSO Act/Additional Sessions Judge,
Kushinagar at Padrauni in Special Sessions CXase No. 238 of 2020 (State Vs.
Hashmat and others) relating to Case crime No. 396 of 2019, under Section 504, 506,
354 IPC and Section 7/8 of POCSO Act, Police Station Patherwa, District Kushinagar,
whereby the application under Section 319 Cr.P.C. has been allowed and the
revisionist has been summoned to face trial.

3. Learned counsel for the revisionist has submitted that an FIR has been lodged under
Section 354, 506, 504 IPC on 16.12.2019 against three accused persons (1) Hashmat,
(2) Sahnawaz and (3) Moharram. Neither any date or place of incident or time has
specifically been mentioned in the FIR. There is no specific allegation has been raised
against the revisionist/Moharram, who is a practicing advocate. Learned counsel for
the revisionist has further submitted that the revisionist has been falsely implicated in
the said case because he advised to Sahnawaj and Hashmat and thereafter, father of
the complainant has lost his service. Due to that enmity, the revisionist/Moharram has
been included in the said case.

4. After detail investigation, charge sheet has been filed on 1.5.2020 only against
accused Hashmat and Sahnawaj under Section 504, 506, 354 IPC and Section 7/8 of
POCSO Act, whereas during investigation and after perusing the statement of victim,
witnesses and inspection of spot, no offence was found against the
revisionist/Moharram and he had been exonerated in the said case.

5. After more than five years, an application under Section 319 Cr.P.C has been filed
on 27.8.2025 and the impugned order was passed on 17.9.2025, whereby the
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                                    2

revisionist has been summoned under Section 319 Cr.P.C.

6. Learned counsel for the revisionist has specifically relied on the affidavit filed by
the revisionist/Moharram in support of memo of criminal revision and he relied on
paragraph nos. 31 and 32 of the said affidavit which read as under:

"31. That the Revisionist is a lawyer he is a practicing in the Tehsil Tamkuhiraj,
district Kushinagar since long back with full honesty and the Co-accused Hashmat
and Shahnawaz both are clients of the Revisionist and on the advised of the
Revisionist the Co-accused Hashmat and Shahnawaz made Complaint against the
father of Victim then enquiry initiated against him and after completion of the enquiry
father of Victim has been terminated/Since the date of termination suspended from His
job. Since the date of termination from the Job the Victim and her family members
keeping enmity with the Revisionist and falsely implicated in this Case for none of his
fault.


32. That the entire Prosecution story as stated against the Revisionist is false,
fabricated and baseless. Infact neither the Revisionist Participated/Involved in the
alleged incident nor the Revisionist was present at the place of alleged incident at the
relevant time and date."

7. It is held by the Hon'ble Supreme Court in Hardeep Singh Vs. State of Punjab
and others (2014) 3 SCC 92 that the word 'evidence' used in Section 319(1) Cr.P.C.
indicates the word 'evidence' is limited to the evidence recorded during trial. It is
further held by the Apex Court in Omi @ Omkar Rathore Vs. State of Madhya
Pradesh and another; 2025 INSC 27 that trial court can add an individual as accused
only on the basis of the evidence adduced before it and not on the basis of the
materials available in the charge sheet or the case diary because such materials
contained in the charge sheet or the case diary do not constitute evidence.

8. It is held by the Hon'ble Supreme Court in Shiv Baran Vs. State of U.P. and
another decided on 16th July, 2025 in Criminal Appeal No. 3008 of 2025 (arising
out of SLP (Criminal) No. 3993 of 2025 that trial court can exercise power to
summon an additional accused under Section 319 Cr.P.C. only on the basis of the
evidence adduced before it and not any other material collected during investigation. It
is also held in Brijendra Singh and others Vs. State of Rajasthan (2017) 7 SCC
706 that the word 'evidence' used in Section 319 Cr.P.C. means the material brought
before the court during trial but evidence collected by the I.O. can be utilized for
corroboration. Whereas, during investigation, no evidence has been found against the
revisionist.

9. It is held by the Supreme Court in Chhaya Vs. State of Maharashtra, (2018) 17
SCC 8 which reads as under:
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                                    3

"10. A perusal of the oral evidence of the parents of the deceased would indicate that
only minor allegations are made against the appellant. Vague and cryptic allegations
are found against her with no specific allegation in respect of demand for dowry or
harassment in any manner. In the absence of definite evidence against the appellant,
the Sessions Court and the High Court are not justified in convicting her even for the
offence punishable under Section 498-A IPC."

10. It is held by the Supreme court in Geeta Mehrotra Vs. State of U.P. (2012) 10
SCC 741 as under:

"18. Their Lordships of the Supreme Court in Ramesh case [(2005) 3 SCC 507 : 2005
SCC (Cri) 735] had been pleased to hold that the bald allegations made against the
sister-in-law by the complainant appeared to suggest the anxiety of the informant to
rope in as many of the husband's relatives as possible. It was held that neither the FIR
nor the charge-sheet furnished the legal basis for the Magistrate to take cognizance of
the offences alleged against the appellants. The learned Judges were pleased to hold
that looking to the allegations in the FIR and the contents of the charge-sheet, none of
the alleged offences under Sections 498-A, 406 IPC and Section 4 of the Dowry
Prohibition Act were made against the married sister of the complainant's husband
who was undisputedly not living with the family of the complainant's husband. Their
Lordships of the Supreme Court were pleased to hold that the High Court ought not to
have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings
against the appellants were quashed and the appeal was allowed."

11. It is further held in paragraph no. 25 of Geeta Mehrotra (supra) as under:-

"25. However, we deem it appropriate to add by way of caution that we may not be
misunderstood so as to infer that even if there are allegation of overt act indicating
the complicity of the members of the family named in the FIR in a given case,
cognizance would be unjustified but what we wish to emphasize by highlighting is
that, if the FIR as it stands does not disclose specific allegation against accused more
so against the co-accused specially in a matter arising out of matrimonial bickering, it
would be clear abuse of the legal and judicial process to mechanically send the named
accused in the FIR to undergo the trial unless of course the FIR discloses specific
allegations which would persuade the court to take cognizance of the offence alleged
against the relatives of the main accused who are prima facie not found to have
indulged in physical and mental torture of the complainant-wife. It is the well settled
principle laid down in cases too numerous to mention, that if the FIR did not disclose
the commission of an offence, the court would be justified in quashing the proceedings
preventing the abuse of the process of law. Simultaneously, the courts are expected to
adopt a cautious approach in matters of quashing specially in cases of matrimonial
dispute whether the FIR in fact discloses commission of an offence by the relatives of
the principal accused or the FIR prima facie discloses a case of over-implication by
involving the entire family of the accused at the instance of the complainant, who is
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                                    4

out to settle her scores arising out of the teething problem or skirmish of domestic
bickering while settling down in her new matrimonial surrounding."

12. It is held in Hardeep Singh (supra) that summoning of accused under Section
319 Cr.P.C. is settled, that this power is an extra ordinary power, which should be
used sparingly with circumspection and while passing the summoning order under
Section 319 Cr.P.C, court must consider whether more than prima facie case made
out, or not, mere prima facie case is not sufficient.

13. There is no specific allegation and specific role of the revisionist has been made
in the said complaint which is filed by the complainant/victim herself. After complete
investigation, his name was exonerated and no charge sheet was filed against him.

14. The statement of opposite party no.2/complainant has been recorded before the
trial court on 19.12.2024, where she states victim's age 19 years. She deposed that the
incident is of the year 2019. When she was going to study then co-villager Hashmat,
Sahnawaj and Moharram have committed some bad act with her. She has specifically
stated that she do not remember the date of incident. Whenever I go to school, they
commit some bad act with her. I had narrated the incident to my parents. I had left my
study due to fear of these persons and whenever he met the revisionist, he threatened
that he is an advocate and also hurled abuses. She has not specified any specific act
committed by the revisionist/Moharram either in the FIR or in the statement recorded
before the court of law in her examination-in-chief. She did not remember date of
incident. She has barely made allegation on the revisionist. Even thereafter whenever
if he threatened because of an advocate, no date, time and place is even disclosed in
the statement recorded before the court of law.

15. It is settled law that to summon an accused under Section 319 Cr.P.C., there must
be more than prima facie case whichever is required for framing of charge. The
evidence that must be of such nature that if it goes unrebutted, it may close to the
conviction. In this case, neither any specific role or specific act committed by the
revisionist with the complainant has been mentioned in the FIR nor in the statement
recorded before the court of law. She did not remember the date of incident. She never
disclosed either place, time or place of incident whenever revisionist had committed
any mal-treatment with her.

16. The said application under Section 319 Cr.P.C. was even filed on 27.8.2025 after
five years of the alleged incident. The revisionist has also exonerated in the charge
sheet and no evidence was found against the revisionist during investigation. The
evidence recorded by the victim/complainant as PW-1 is not upto such extent which
fulfills ingredients of Section 319 Cr.P.C.

17. In view of all these facts and circumstances of the case and provisions of law, the
impugned order dated 17.9.2025 is hereby set aside. The order, if any, passed in
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                                    consequence of that order, are also set aside.

                                    18. The criminal revision is hereby allowed, accordingly.

                                    March 10, 2026
                                    sfa/
                                                                                                   (Abdul Shahid,J.)




Digitally signed by :-
SYED FAHEEM AHMAD
High Court of Judicature at Allahabad