Chotkau Alias Allauddin vs State of U.P. Thru. Its Prin. Secy. Home Deptt. Lko. U.P. and 4 Others

Heard Sri Nadeem Murtaza, Advocate assisted by Sri Prashast Puri, Advocate and Sri Parth Anand, Advocate, learned counsel for the applicant and Sri S.M. Singh Royekwar, Additional Advocate General assisted by Sri Arun Kumar Verma, learned A.G.A.

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The present application is filed with the prayer to quash the entire proceedings of Sessions Trial No.299 of 2025, 'State of U.P.

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NA528 No. - 2005 of 2025

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Vs. Chotkau @ Allauddin' arising out of F.I.R. No.113 of 2025 registered on 12.5.2025 at Police Station Ikauna, District Shrawasti under Section 109 BNS read with Section 3/25 Arms Act, pending in the court of the learned Sessions Judge, Shrawasti.

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Learned counsel for the applicant has submitted that applicant, who belongs to the Economic Weaker Section, was earlier falsely implicated in F.I.R. No.261 of 2012 under Sections 302, 376 I.P.C., Police Station - Ikauna, District - Shrawasti, in which, charge sheet was submitted in most mechanical manner. As per the prosecution story, on 8.3.2012 at about 20:10 Hrs., one Kishun Bahadur, r/o village Semgarha, P.S. Ikauna made a complaint to the police alleging that on the same day at about 4:00 p.m., applicant took his niece aged about six years under the pretext of showing dance and song performances on the occasion of the Holi Festival, but the girl did not come back home. On the search having been conducted, dead body of the girl was found in sugarcane field located at the southern side of the village. On the basis of last seen theory as well as circumstantial evidence, the applicant was charge-sheeted for the commission of offence of raping a minor girl and murdering her. Thereafter, learned Sessions Court convicted the applicant for the offence punishable under Sections 302 and 376 I.P.C. awarding death penalty and

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the reference was sent by the trial court to the High Court for confirmation of the sentence. Thereafter, appeal was filed by the applicant, but the same was dismissed by allowing the reference confirming the death penalty. The said judgment of High Court was challenged before the Hon'ble Supreme Court and after granting leave, same was registered as Criminal Appeal No.361362 of 2018, in which, Amicus Curiae was appointed by the Hon'ble Supreme Court considering the financial condition of the applicant. It has vehemently been submitted that the said appeal was allowed vide order dated 28.9.2022 by acquitting the applicant with remarks against the prosecution in Para 87 of the aforesaid judgment. The Hon'ble Supreme Court also observed that applicant is so poor that he could not afford to engage a lawyer even in the Sessions Court and after his repeated request, service of an advocate was provided as Amicus Curiae. It is further observed that considering the evidence with such a sense of responsibility, the guilt of the applicant was not established beyond reasonable doubt.

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3.1. Learned counsel for the applicant further submitted that on 9.5.2025 at 22:16 Hrs., another F.I.R. No.110 of 2025 under Section 137(2) of B.N.S., Police Station Ikauna, Shrawasti was lodged on the written complaint of one Ajay Jaiswal with the allegation that on the same day at 9:15 p.m., his daughter Tanu,

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aged about 7 years was taken away by Shafeeq r/o Village Itaunja, P.S. Ikauna, Shrawasti alongwith two others. On the search, accused persons met him on the road, and when he tried to catch them, Shafeeq was caught alongwith his daughter, however, his two companions escaped. Thereafter, complainant - Ajay Jaiswal handed over Shafeeq as well as his daughter to the police. He further submitted that Shafeeq was caught on the spot and was handed over to the police, but police had not asked from him about his companions/accused person. Submission of learned counsel for the applicant is that as the police was annoyed from the observations made by the Hon'ble Supreme Court in the judgment dated 28.9.2022 passed in Criminal Appeal No.361-362 of 2018 (supra), therefore, applicant was picked up from his house and by showing a fake encounter and showing recovery of a country made pistol and two cartridges from his possession, arrest/recovery memo was prepared by Mr. Ashwani Kumar Dubey, S.H.O., Police Station Ikauna, Shrawasti (P.N.O. No.880530329).

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3.2. Learned counsel for the applicant submitted that Mr. Ashwani Kumar Dubey, S.H.O., Police Station Ikauna, Shrawasti lodged the present F.I.R. bearing No.113 of 2025 on 12.5.2025 under Section 109 B.NS. & Section 3/25 Arms Act, Police Station Ikauna, Shrawasti against the applicant with the allegation that

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on the basis of information of an informer that one of the accused of F.I.R. No.110 of 2025 (supra) is trying to go to Nepal in the night, he constituted three teams, one of which was headed by him, i.e., Mr. Ashwani Kumar Dubey, S.H.O. alongwith members, Mr. Vivek Pandey, S.I., Sandeep Yadav, Constable, Sheshram Verma, Constable; second team was headed by Afzal Saleem Khan, S.I., Premchand, S.I., Ram Singh, Head Constable, Chandresh Kumar, Constable, Prince Chaudhary, Constable; and third team was headed by Vishal Yadav, S.I., Avnish Yadav, S.I., Atul Singh, Constable, Ajay Kumar Chaudhary, Constable. All the teams were fully equipped with arms. It is further alleged that they were waiting on an unidentified place and suddenly they saw a light of E-Rickshaw, on which, the officers of the team had given a signal to stop the E-Rickshaw, but the person who was sitting in the E-Rickshaw, after seeing police personnel, turned the same. Mr. Ashwani Kumar Dubey, S.H.O. warned him to stop, but the E-Rickshaw was hit with a tree and the person, who was sitting in it, tried to ran away leaving the vehicle. It is also alleged in the F.I.R. that the person, who was sitting in the E-Rickshaw, was again instructed to surrender, but in response to the same, he challenged the police team by saying not to follow him otherwise they will be eliminated and tried to load his gun, on which, in self defence, the S.H.O. opened two fires and also intimated the District Control Room. At the same time, he heard

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groaning and when the team reached to the said place by crawling, they saw that a person was lying on the ground and the blood was oozing from his both the legs. On the spot, country made pistol and cartridges were also lying. It is also alleged that on the interrogation, the said person informed his identity as Chotkau @ Allauddin s/o Maqbool, r/o Behnanpurva, Semghada, P.S. Ikauna, Shrawasti and he admitted his involvement in F.I.R. No.110 of 2025 (supra).

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3.3. Learned counsel for the applicant also submitted that initially the investigation of crime was assigned to Mr. Dharam Raj Yadav, Sub Inspector, P.S. Ikauna (P.N.O. No.152170910). Thereafter, it was assigned to Mr. Yogesh Kumar Singh (P.N.O No.912320207), P.S. - Naveen Modern Police Station, Shrawasti and on his transfer, the investigation was handed over to Mr. Shambhu Singh, Sub Inspector (P.N.O. No.912220180). Learned counsel for the applicant vehemently submitted that it is admitted case of the prosecution that no fire was opened from the side of the applicant, even then firing was done by the police official, Mr. Ashwani Kumar Dubey. It is also revealed from the recovery memo that one country made pistol, two live cartridges and one fired cartridge were sent to the F.S.L., but in the F.I.R., it is mentioned that one live cartridge was found in barrel of the pistol and there is no whisper that any fire was opened by the

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applicant. It has been submitted that the charge sheet was submitted by the Investigating Officer against the applicant in F.I.R. No.110 of 2025 (supra) in most mechanical manner.

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3.4. Learned counsel for the applicant further submitted that in the present case, charge sheet was submitted after conducting the investigation in complete violation of the mandatory guidelines issued by Hon'ble Supreme Court in the case of P.U.C.L. Vs. State of Maharashtra & Ors. reported in (2014) 10 SCC 635 . He also relied on the decision of Hon'ble Supreme Court in the case of Arif Md. Yeasin Jwadder Vs. State of Assam & Ors. reported in 2025 INSC 785 and submitted that the applicant, who belongs to the economic weaker section, has been implicated in the present case showing his involvement in the crime of F.I.R. No.110 of 2025 (supra). Admittedly, in F.I.R. No.110 of 2025, Shafeeq was caught on the spot, who was handed over to the police, but names of his associates were not mentioned in the F.I.R. for the reasons best known to the authorities. Thereafter, discharge application was filed before the trial court and it was bounden duty of the trial court to examine all the evidences at the time of deciding the discharge application of the applicant. It is also admitted that the police exceeded its power by opening a fire when there was no allegation in the recovery memo/F.I.R.

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that the applicant opened any fire, and only on some noise, team leader thought that the applicant was loading his weapon.

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3.5. Submission of learned counsel for the applicant is that the applicant was remanded to the judicial custody of learned C.J.M., Shrawasti on 12.5.2025 without being provided any legal help/Amicus Curiae. It has also been submitted that the trial court failed to inquire into the matter, in which, applicant sustained injuries and also that whether the applicant and his family were informed about the ground of his arrest and the Sessions Judge dismissed the discharge application of the applicant in a nonspeaking and cryptic manner without appreciating the entire material on record. Relying on the decision of Hon'ble Supreme Court in the case of Union of India Vs. Prafulla Kumar Samal & Anr. reported in (1979) 3 SCC 4 and Dilawar Balu Kurane Vs. State of Maharashtra reported in (2002) 2 SCC 135 learned counsel for the applicant submitted that trial court has to consider the material on record while framing charge/deciding the discharge application and the trial judge cannot act merely as a post office or the mouthpiece of prosecution. He also submitted that in the case of P.U.C.L. Vs. State of Maharashtra (supra) , it is categorically observed by the Hon'ble Supreme Court that the investigation in the case of encounter shall be conducted by the C.I.D. or police team of another police station, however, in the

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present case, part of the investigation was conducted by the Sub Inspector of the same police station, who is subordinate to the leader of the encounter team. It has lastly been submitted that in Criminal Appeal No.361-362 of 2018 (supra), Hon'ble Supreme Court set aside the order of conviction passed by the trial court giving capital punishment with the certain remarks against the prosecution. Learned counsel for the applicant, thus, submitted that the order dated 28.7.2025 passed by the learned Sessions Judge is also liable to be set aside and necessary directions may be issued for further investigation in the matter by any other agency.

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Sri S.M. Singh Royekwar, learned Additional Advocate General vehemently opposed the prayer of the applicant and submitted that applicant was involved in crime related to F.I.R. No.110 of 2025 (supra), which was lodged on 9.5.2025 and while trying to escape, he was intercepted and in a police encounter, he received injuries. Thereafter, F.I.R. No.113 of 2025, under Sections 109 B.N.S. and Section 3/25 Arms Act was also lodged. Learned A.A.G. on the basis of record, submitted that copy of the arrest/recovery memo was handed over to the applicant in the hospital, but the same was torn and thrown by him in the hospital. However, learned counsel A.A.G. conceded the fact that the involvement of the applicant was found in Case Crime No.261

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NA528 No. - 2005 of 2025 of 2012 under Sections 302, 376 I.P.C., in which, capital punishment was given by the learned trial court, which was upheld by the High Court. However, appeal of the applicant was allowed by the Hon'ble Supreme Court by setting aside the judgment of the trial court as well as High Court.

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4.1. Learned Additional Advocate General next submitted that in F.I.R. 110 of 2025 (supra), applicant has already been convicted by the Sessions court in Case No.221 of 2025 on 3.10.2025. He also submitted that vide order dated 13.5.2025, investigation was transferred to Mr. Yogesh Singh, In-charge, Police Station - Naveen Modern Police Thana, Shrawasti and on the transfer of Mr. Yogesh Singh, the investigation was assigned to Mr. Shambhu Singh on 29.6.2025. Thereafter, District Magistrate granted sanction for prosecuting the applicant under the Arms Act on 5.7.2025. It has further been submitted that the investigation was concluded on 7.7.2025. It has vehemently been submitted that the case of the applicant is not covered under the principles of law laid down by the Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajanlal reported in 1992 Supp. 1 SCC 335 . He also submitted that as the cognizance has already been taken by the competent court and discharge application having been rejected, at this stage, transferring the investigation can be exercised sparingly and in rarest of the rare case, where it can be

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shown that investigation is exfacie unfair. It has lastly been submitted that the discharge application has rightly been rejected and, therefore, no interference is required.

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Considering the submissions of learned counsel for the applicant, learned A.A.G., and going through the contents of the application as well as other relevant documents including the judgments relied by the learned counsel for the parties, it is evident that earlier applicant was convicted in a case of rape and murder of a minor girl, in which, capital punishment was awarded to him by the trial court, which was upheld by the Hon'ble High Court. Thereafter, appeal was filed by the applicant before the Hon'ble Supreme Court, which was entertained by the Hon'ble Supreme Court as Criminal Appeal No.361-362 of 2018 (Chhotkau @ Allahuddin Vs. State of U.P. & Ors.), in which, vide order dated 28.9.2022 the order of conviction passed by the trial court was set aside with the observation that applicant was so poor that he could not afford to engage an advocate in the Sessions court and after repeated request to the Court of District and Sessions Judge, service of Amicus Curiae was provided to him. The action of the prosecution was also deprecated in para no.87 of the aforesaid judgment.

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5.1. The record also reveals that F.I.R. No.110 of 2025 under Sections 137(2) of B.N.S. was lodged at Police Station - Ikauna, Shrawasti on 9.5.2022 at 22:16 Hrs. by one Ajay Jaiswal, in which, he himself has admitted that one accused was caught by him and handed over to the police alongwith her minor daughter, but the name of the co-accused persons was not asked from Shafeeq as in the F.I.R., description of only two unknown persons were given.

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The F.I.R. No.110 of 2025 lodged by the complainant, Ajay Jaiswal is reproduced as under :-

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"सेवा में श्रीमान थाना अध्यक्ष महोदय इकौना श्रावस्ती महोदय निनवेदन है निक प्राथ� अजय जायसवाल पुत्र रामनिवलास जायसवाल ग्राम चि$$डी थाना इकौना जनपद श्रावस्ती का निनवासी हूँ। आज निदनांक 09.05.2025 को समय लगभग 09.15 PM मेरी पुत्री तनु उम्र 7 वर्ष0 को शफीक पुत्र अज्ञात निनवासी इटाँझा थाना इकौना जनपद श्रावस्ती अपने दो अज्ञात साथिथयों के साथ मेरी पुत्री को जबरदस्ती फुसलाकर बैटरी रिरकशा से लेकर भाग गया बाद में काफी ढूंढने के बाद मोहनीपुर $ौराहे से आगे लड़की और मुलजिजम रोड पर निमले जब मुलजिजम को पकड़ने के लिलए गये तो वह तेजी से भगा शफीक को पकड लिलया गया बाकी उसके दो साथी फरार हो गया शफीक और पुत्री तनु को मेरे द्वारा पुलिलस को सुपुद0 निकया गया। अतः श्रीमान जी से निनवेदन है निक आवश्यक काय0वाही करने की कृपा करे। प्राथ� अजय जायसवाल मो 0 नं0 73795XXXXX 96281XXXXX निदनांक 09.05.2025 नोट तहरीर की नकल अक्षरशः कम्प्यूटरीकृत निकया गया। साफ्टवेयर की वजह से लिलनिपकीय त्रुनिट होना सम्भानिवत है। अपराध की कायमी व निववरण हे० मो० मनोज कुमार चितवारी द्वारा बोल बोल कर अक्षरशः कम्प्यूटरीकृत करवा कर चि$क निकता करवाया गया ।"

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5.2. As per the prosecution case of F.I.R. No.113 of 2025, S.H.O., Police Station - Ikauna received information that one of the accused of F.I.R. No. 110 of 2025 is leaving the country and going to Nepal, on which, police officials divided in three teams and the said operation was lead by Mr. Ashwani Kumar Dubey, Station House Officer, Police Station Ikauna, Shrawasti. In the memo of the recovery, it is admitted that a team member saw a light of E-Rickshaw, but the person who was sitting in the E- Rickshaw, after seeing police, tried to escape, and in course of escaping, E-Rickshaw was hit with a tree and when he was trying to run away, he was instructed to surrender, but he challenged the police team by saying 'not to chase him, otherwise they will be killed'. It is also admitted that Mr. Ashwani Kumar Dubey, S.H.O. heard a sound of loading the weapon, on which, he fired twice, and thereafter, they heard the sound of groaning and by crawling they reached there and saw that one person is lying and blood is oozing from his both legs. A country made pistol and cartridges were also found lying near the said person.

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5.3. Apparently, in the memo, it is admitted by the team leader that he only heard a sound of loading the weapon, and indisputably, no fire was opened by the applicant. However,

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surprisingly, then how the charge sheet was submitted by the Investigating Officer under Section 109 B.N.S.

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5.4. The record further reveals that after the said encounter, no information was given to the family members of the applicant. Further, though it is alleged that copy of the arrest memo was given to the applicant, but same was torn by him in the hospital, however, there is no description of the recovery of the said torn arrest memo, which was given to the applicant.

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5.5. In view of the above facts and discussions, this Court is of the view that the Hon'ble Supreme Court vide order dated 28.9.2022 passed in the case of the applicant herein, i.e., Criminal Appeal No.361-362 of 2018 (supra) observed that applicant was so poor and he could not afford to engage a lawyer to defend himself. In the present case also, at the time of remand as informed by learned counsel for the applicant, no legal aid was provided to the applicant. Admittedly, all these facts were not considered by the trial court at the time of rejecting the discharge application.

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Accordingly, the application stands allowed , the order dated 28.7.2025 passed by the Sessions Judge on the discharge application of the applicant is hereby set aside.

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The trial court is directed to pass a fresh order on the discharge application after providing adequate legal aid to the applicant.

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(Rajeev Singh,J.)

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March 26, 2026. Gaurav/-

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Digitally signed by :- GAURAV PAL High Court of Judicature at Allahabad, Lucknow Bench

Chotkau Alias Allauddin v. State of U.P. Thru. Its Prin. Secy. Home Deptt. Lko. U.P. and 4 Others

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Chotkau Alias Allauddin v. State of U.P. Thru. Its Prin. Secy. Home Deptt. Lko. U.P. and 4 Others

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