# Deepak Singh @ Subham Singh v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2025) 6 ILRA 2
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-06-13
- **Case number:** Application U/S 482 No.491 of 2025
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deepak-singh-subham-singh-v-state-of-u-p-anr-opp-parties-53576
- **Pages:** 57

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 323, 504, 506, 325 & 308 - Code
of Criminal Procedure, 1973 - Section 319
- Impugned summoning order is based on
St.ments of injured witnesses (PW-1),
(PW-2)/complainant and witness of fact
(PW-3),
who
levelled
specific
allegations
against
applicant,
also
found in NCR - Challenge to order is
based on ground that earlier application
under
Section
319
Cr.P.C.
was
dismissed as withdrawn without Court's
permission to file a fresh one - It is
contended that subsequent application
under
same
Section
was
not
maintainable - Testimony of injured
witnesses holds high evidentiary value
and should not be lightly discarded - At
this stage, trial court need not assess
evidence on merits, that is to be done
during trial - First application was
withdrawn for bona fide reasons, as it
was informed that named person, had
already passed away - Subsequently,
second application was filed - Judgment
in Baccha Lal @ Vijay Singh (infra) is
per incuriam and not binding, liable to
be
disregarded
-
No
illegality
in
impugned order. (Para 4, 6, 24 to 26)
Application dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,837 of 185,537. This is a partial read: ask again with offset=39837 for what follows._

2 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 6 ILRA 2
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.06.2025

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Application U/S 482 No.491 of 2025

Deepak Singh @ Subham Singh
 ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Manuvendra Singh

Counsel for the Opp. Parties:
G.A., Ajay Pratap Singh

Criminal Law - Indian Penal Code, 1860 -
Section 323, 504, 506, 325 & 308 - Code
of Criminal Procedure, 1973 - Section 319
- Impugned summoning order is based on
St.ments of injured witnesses (PW-1),
(PW-2)/complainant and witness of fact
(PW-3),
who
levelled
specific
allegations
against
applicant,
also
found in NCR - Challenge to order is
based on ground that earlier application
under
Section
319
Cr.P.C.
was
dismissed as withdrawn without Court's
permission to file a fresh one - It is
contended that subsequent application
under
same
Section
was
not
maintainable - Testimony of injured
witnesses holds high evidentiary value
and should not be lightly discarded - At
this stage, trial court need not assess
evidence on merits, that is to be done
during trial - First application was
withdrawn for bona fide reasons, as it
was informed that named person, had
already passed away - Subsequently,
second application was filed - Judgment
in Baccha Lal @ Vijay Singh (infra) is
per incuriam and not binding, liable to
be
disregarded
-
No
illegality
in
impugned order. (Para 4, 6, 24 to 26)
Application dismissed. (E-13)

List of Cases cited:

1. St. of M.P. Vs Mansingh (2003) 10 SCC 414

2. Abdul Sayeed Vs St. of M.P. (2010) 10 SCC
259

3. St. of U.P. Vs Naresh (2011) 4 SCC 324

4. Laxman Singh Vs St. of Bihar (Now
Jharkhand) (2021) 9 SCC 191

5. K.R. Deb Vs The Collector of Central Excise,
Shillong, AIR 1971 SC 1447

6. St. of Assam & anr. Vs J,N, Roy Biswas, AIR
1975 SC 2277

7. St. of Panjab Vs Kashmir Singh, 1997 SCC
(L&S) 88

8. U.O.I. & ors. Vs P.Thayagarajan, AIR 1999 SC
449

9. U.O.I. Vs K.D. Pandey & anr. (2002) 10 SCC
471

10. Assistant Commissioner, Commercial, Tax
Department, Brothers (JT) 2010 (4) SC 35

11. CCT Vs Shukla & Brothers 2010 (4) SCC 785

12. Baccha Lal @ Vijay Singh Vs St. of U.P. &
anr., Criminal Appeal No. 6502 of 2018, (Para 22
to 42)

13. Sarguja Transport Service Vs St. Transport
Appellate Tribunal, M.P., Gwalior & ors.; (1987)
1 SCC 5

14. Upadhyay & Company Vs St. of U.P. & ors.;
(1999) 1 SCC 81

15. Hardeep Singh Vs St. of Pun., reported in
(2014) 3 SCC 92, (Para 10 to 19, 43, 45, 63)

16. Rajesh & ors. Vs St. of Har., reported in
(2019) 6 SCC 368

17. Brijendra Singh Vs St. of Raj., (2017) 7 SCC
706 : (2017) 4 SCC (Cri) 144
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
3
18. Manjeet Singh Vs St. of Har. & ors., reported
in (2021) 18 SCC 321, (Para 15 to 26)

19. Sukhpal Singh Khaira Vs St. of Pun. reported
in (2023) 1 SCC 289 (Para 22, 38 to 41)

20. Yashodhan Singh & ors. Vs St. of U. P. &
ors., reported in (2023) LiveLaw (SC) 576 : 2023
INSC 652

21. Jogendra & ors. Vs St. of Bihar & anr. ,
reported in (2015) 9 SCC 244

22. Sarva Shramik Sanghatana (KV) Vs St. of
Mah. & ors. reported in (2008) 1 SCC 494

23. Himachal Pradesh Financial Corporation Vs
Anil Garg & ors. reported in (2017) 14 SCC 634,
(Para 13 to 16, 19)

24. P. Rathinam Vs U.O.I. & anr. reported in
(1994) 3 SCC 394, (Para 92 to 96)

25. K.S. Panduranga Vs St. of Karn., [2013] 1
A.C. R 994, (Para 30 to 35)

26. Sundeep Kumar Bafna Vs St. of Mah.
reported in (2014) 16 SCC 623 : (2015) 3 SCC
(Cri) 558, (Para 19)

27. Punjab Land Development & Reclamation
Corpn. Ltd. Vs Labour Commr., (1990) 3 SCC
682 : 1991 SCC (L&S) 71, (Para 40)

28. Bilkis Yakub Rasool Vs U.O.I. & ors.reported
in (2024) 5 SCC 481, (Para 145, 146, 153, 154)
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Manuvendra Singh,
learned counsel for the applicant, Sri
Ajay Kumar Srivastava, learned AGA
for the State of U.P., Sri Ajay Pratap
Singh-II,
Advocate,
who
has
filed
Vakalatnama
alongwith
Sri
Vinod
Kumar Singh, Advocate on behalf of the
opposite
party
No.
2/complainant/
Mahendra Pratap Singh in the Court
today, which is taken on record, as well
as perused the record.
2. By means of the instant
application, the applicant has sought the
following main relief(s):-

 "That for the facts, reasons and
circumstances stated in the accompanying
affidavit filed in support of this application
under section 482, Cr.P.C., it is most
respectfully prayed that this Hon'ble Court
may graciously be pleased to quash the
impugned order dated 09-02-2023 passed
by Upper Session Judge Room No. 8,
Sultanpur, in S. T. No. 115/2016, arising
out Case Crime No. 222/2012, Under
Section 323, 504, 506, 325, 308, IPC,
Police Station Chanda District Sultanpur
contained here with as Annexure No. 1 to
this affidavit, otherwise the applicant shall
suffer irreparable loss and injury.

 It is further prayed that this
Hon'ble Court may graciously be pleased
to stay the proceeding of the S.T. No.
115/2016 (State vs. Rajesh Pratap Singh
and another) arisen out of the case crime
no. 222 of 2012, under section 323, 504,
506, 325, 308, IPC, Police Station Chanda,
District- Sultanpur, which is pending
before Upper Session Judge Room No. 21
Sultanpur, which is pending before Chief
Judicial Magistrate District Lucknow,
otherwise the applicants shall suffer
irreparable loss and injury."

3. Vide order, under challenge,
dated 09.02.2023 passed by Additional
Sessions Judge (Room No. 8), Sultanpur
(in short "trial court") in S.T. No.
115/2016, arising out of Case Crime No.
222/2012, under Sections- 323, 504, 506,
325, 308 IPC, Police Station- Chanda
District- Sultanpur, whereby, the trial court
allowed the Application No. 37-Kha
preferred by the opposite party No. 2 under
Section 319 Cr.P.C. and summoned the
4 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant to face the trial. The order dated
09.02.2023, being relevant, is extracted
hereunder:-

 fnukad 09-02-2023

 l= ijh{k.k izLrqr gqvkA oknh egsUnz izrki
flag vkSj ls izkFkZuk i= la[;k&37 [k vUrxZr
/kkjk&319 n.M izfdz;k lafgrk ,oa izLrkfor foi{kh dh
vksj ls izLrqr vkifRr izkFkZuk i= la[;k&40 [k ij
mHk;i{kksa ds fo}ku vf/koDrk lfgr jkT; dh vksj ls
mifLFkr fo}ku lgk;d ftyk 'kkldh; vf/koDrk
nkf.Md lquk x;k rFkk i=koyh dk ifj'khyu fd;k
x;kA

 fuLrkj.k izkFkZuk i= la[;k&37 [k]
vUrxZr /kkjk&319 n.M izfdz;k

 1- oknh@vfHk;kstu i{k dh vksj ls izkFkZuk
i= 37 [k] vUrxZr /kkjk&319 n.M izfdz;k lafgrk e;
'kiFki= bl vk'k; dk izLrqr fd;k x;k gS fd fnukad
08-05-2012 dks le; 8-30 cts jkts'k izrki flag]
f'kods'k flag] iq"ik nsoh o nhid flag ,d jk; gksdj
tku ls ekjus dh fu;r ls izk.k?kkrd pksVsa igqapk;h]
ftlesa ckn foospuk iqfyl }kjk vfHk;qDr iq"ik flag ,oa
nhid flag dk uke fudky fn;k x;k gS o vU;
vfHk;qDrksa ds fo:) /kkjk 308] 323] 325] 504] 506
Hkkjrh; n.M lafgrk ds vUrxZr vkjksi i= izsf"kr fd;k
x;kA foospd ds le{k lk{khx.k }kjk fn;s x;s c;ku esa
mDr vfHk;qDRkx.k nhid flag o iq"ik flag ds ?kVuk esa
lfEefyr gksus dk c;ku fn;k x;k gSA i=koyh ij
vfHk;qDr nhid flag }kjk ?kVuk dkfjr fd;s tkus dk
fu'p;kRed lk{; miyC/k gSA nkSjku fopkj.k vfHk;qDrk
iq"ik flag dh e`R;q gks pqdh gSA vr% izLrkfor vfHk;qDRk
nhid flag dks fopkj.k gsrq ryc fd;k tk,A

 2- mi;qZDr izkFkZuk i= ij fyf[kr vkifRr
izkFkZuk i= la[;k&40 [k foi{kh@vfHk;qDRk jkts'k izrki
flag dh vksj ls bl vk'k; dh izLrqr dh x;h gS fd
vfHk;qDRk iq"ik flag ,oa nhid flag dks izFke lwpuk
fjiksVZ esa vfHk;qDr cuk;k x;k gS] ijUrq foospd }kjk
mudh uketnxh xyr ik;h x;h rFkk vkjksi i= jkts'k
izrki flag o f'kods'k flag ds fo:) U;k;ky; esa izsf"kr
fd;k x;kA nhid flag vkifRrdrkZ dk iq= ugha gS]
mlds nks gh iq= gSa] ftudk uke f'koe flag o 'kqHke
flag gSA nhid flag ds uke dk O;fDr vkifRrdrkZ ds
?kj ifjokj dk ugha gSA izFke lwpuk fjiksVZ iqjkuh jaft'k
ds dkj.k fy[kk;h x;h gSA vr% izkFkZuk i= fujLr fd;k
tk,A
 3- vkifRrdrkZ }kjk viuh vkifRr ds lkFk
vfHk;qDr jkts'k izrki flag dk vk/kkj dkMZ o f'koe
flag o 'kqHke flag ds gkbZLdwy vad i= ,oa ifjokj
jftLVj dh izfr izLrqr dh x;h gSA

 4- i=koyh dh ifj'khyu ls Li"V gksrk gS
fd izLrqr ekeys esa izFke lwpuk fjiksVZ oknh egsUnz
izrki flag }kjk nh x;h rgjhj tks fd iqfyl
v/kh{kd] lqYrkuiqj dks lEcksf/kr dh x;h gS] ftlesa
nhid flag ds vfrfjDr vU; vfHk;qDrx.k }kjk
izk.k?kkrd pksVsa igqapk;k tkuk rRi'pkr esfMdy
djk;s tkus vkfn dk dFku fd;k x;k gSA vU; rgjhj
Fkkuk/;{k dks izsf"kr dh x;h gS] ij Hkh vfHk;qDr nhid
flag iq= jkts'k eqfYte of.kZr fd;k x;k gSA
/kkjk&161 n.M izfdz;k lafgrk ds vUrxZr vafdr fd;k
x;k gS] ftlesa Hkh vfHk;qDRk nhid flag ds ?kVuk esa
lfEefyr gksus ds esa c;ku fn;k x;k gSA vU; lk{kh
Jherh dqlqe flag }kjk Hkh mDRk ds leFkZu esa cn
fn;k x;k gSA

 5- U;k;ky; ds le{k lk{kh ih0MCyw0 1
jktkjke dk c;ku vafdr fd;k x;k gSA ftlesa
vfHk;qDr nhid flag ds ?kVuk esa lfEEkfyr gksus ds
fo"k; esa c;ku fn;k x;k gSA lk{kh ih0MCyw0 2 egsUnz
izrki flag }kjk Hkh ;g c;ku fn;k x;k gS fd ?kVuk ds
le; nhid flag ykBh MaMk ysdj vk;k rFkk pkjksa
vfHk;qDRkksa }kjk feydj ekjihV dkfjr dh x;hA lk{kh
ih0MCyw0 3 lk/kuk flag }kjk Hkh izLrkfor vfHk;qDRk nhid
flag ds ?kVuk esa lfEefyr gksus ds lanHkZ esa c;ku fn;k
x;k gSA bl izdkj lk{; ls Hkh izLrkfor vfHk;qDRk nhid
flag dh ?kVuk esa lafYkIrrk lk{khx.k }kjk iznf'kZr dh x;h
gSA vr% izLrkfor vfHk;qDr nhid flag dk Hkh vU;
vfHk;qDrx.k ds lkFk fopkj.k fd;k tkuk U;k;ksfpr ik;k
tkrk gSA rnuqlkj izkFkZuk i= Lohdkj fd;s tkus ;ksX; gSA

vkns'k

 vkosnd@oknh egsUnz izrki flag }kjk
izLrqr izkFkZuk i= la[;k 37 [k varxZr /kkjk 319 n.M
izfdz;k lafgrk Lohdkj fd;k tkrk gSA

 rnuqlkj vfHk;qDRk nhid flag dks eqdnek
vijk/k
la[;k
222@2012]
varXkZr
/kkjk
308]323]302]325]504]506 lifrr /kkjk 34 Hkkjrh;
n.M lafgrk] Fkkuk pkank] ftyk lqYrkuiqj ds vijk/k esa
fopkj.k gsrq ryc fd;k tkrk gSA vfHk;qDRk nhid
flag ds fo:) fnukad 06-03-2023 gsrq leu tkjh gksA
 l= ijh{k.k dh i=koyh fnukad 06-062023 dks izLrqr gksA"
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
5
4. The order, under challenge,
dated
09.02.2023
indicates
that
the
applicant has been summoned after taking
note of the statements of injured witnesses
namely Rajaram (PW-1) and Mahendra
Pratap Singh/complainant (PW-2) and one
Sadhana Singh (PW-3), who is the witness
of fact.

5. It would be apt to indicate here
that Rajaram (PW-1) and Mahendra Pratap
Singh/complainant (PW-2) are the injured
witnesses and the testimony of injured
witnesses has greater evidentiary value and
unless compelling reasons exist, their
statements are not to be discarded lightly,
as observed by the Hon'ble Apex Court in
the case(s) of State of M.P. vs. Mansingh
(2003) 10 SCC 414; Abdul Sayeed vs.
State of M.P. (2010) 10 SCC 259; State of
U.P. vs. Naresh; (2011) 4 SCC 324 and
Laxman Singh vs. State of Bihar (Now
Jharkhand) (2021) 9 SCC 191.

6. The
order
impugned dated
09.02.2023 has been challenged on the
ground to the effect that the Application No.
30-Kha preferred under Section 319 Cr.P.C.
was dismissed as withdrawn vide order dated
03.10.2022 without seeking leave/permission
from the court to prefer a fresh application
and as such, the second Application No. 37Kha preferred by the prosecution under
Section
319
Cr.P.C.
itself
was
not
maintainable and therefore, the impugned
order dated 09.02.2023 passed thereon is
liable to be interfered with by this Court.

7. Another ground of challenge is
to the effect that the impugned order dated
09.02.2023 is not a speaking/reasoned
order.

8. The aforesaid can be deduced
from the paragraphs 23 and 24 of the
instant application, which are extracted
hereunder:-

 "23. That in view of the aforesaid
discussion,
learned
court
below
to
conclude that since the first application
under section 319 Cr.P.C. filed by first
informant/opposite party no.2 was got
dismissed as not pressed with liberty to file
fresh, the second application under section
319 Cr.P.C. filed first informant/opposite
party no.2 was clearly not maintainable.

 24. That it is well settled
principal of law that every order passed by
quasi-judicial or judicial authority, must be
speaking
and
reasoned,
as held
in
following cases:-

 1. K.R. Deb Vs. The Collector of
Central Excise, Shillong, AIR 1971 SC
1447.
 2. State of Assam & Anr. Vs.
J,N, Roy Biswas, AIR 1975 SC 2277.
 3. State of Panjab Vs. Kashmir
Singh, 1997 SCC (L&S) 88.

 4. Union of India & Ors. Vs.
P.Thayagarajan, AIR 1999 SC 449.

 5. Union of India Vs. K.D.
Pandey & Anr. (2002)10 SCC471.

 6.
Assistant
Commissioner,
Commercial, Tax Department, Brothers
(JT)2010(4)SC35,

 7. CCT Vs. Shukla and Brothers
2010 (4)SCC785."

9. The order dated 03.10.2022
(Annexure No. 7 to the instant application),
referred, is extracted hereunder:-

 " fnukad 03-10-2022
6 INDIAN LAW REPORTS ALLAHABAD SERIES
 l= ijh{k.k izLrqr gqvkA oknh egsUnz izrki
flag dh vksj ls izkFkZuk i= la[;k&30[k] vUrxZr
/kkjk&319 n.M izfdz;k lafgrk ij mHk;i{kksa ds fo}ku
vf/koDrk lfgr jkT; dh vksj ls mifLFkr fo}ku
lgk;d ftyk 'kkldh; vf/koDrk nkf.Md lquk x;k
rFkk i=koyh dk ifj'khyu fd;k x;kA

 oknh@vkosnd ds fo}ku vf/koDrk }kjk
mijksDRk izkFkZuk i= ij bl vk'k; fVIi.kh vafdr dh
x;h gS fd og izkFkZuk i= ij cy ugha nsuk pkgrs gSaA

 of.kZr ifjfLFkfr;ksa esa izLrqr izkFkZuk i=
la[;k&30[k] vUrxZr /kkjk&319 n.M izfdz;k lafgrk
cykHkko esa fujLr fd;s tkus ;ksX; gSA

vkns'k

 oknh@vkosnd }kjk izLrqr izkFkZuk i=
la[;k&30[k] vUrxZr /kkjk&319 n.M izfdz;k lafgrk
cykHkko esa fd;k tkrk gSA

 l= ijh{k.k fnukad 03-11-2022 dks vfxze
vkns'k gsrq izLrqr gksA"

10. In support of his submissions,
learned counsel for the applicant has placed
reliance on the judgment dated 04.11.2022
passed by this Court in Criminal Appeal
No. 6502 of 2018 (Baccha Lal @ Vijay
Singh vs. State of U.P. and another). The
relevant
paragraphs,
referred,
of
the
judgment dated 04.11.2022 are extracted
hereunder:-

 "22.
Subsequently,
first
informant/opposite party-2, filed another
application dated 02.03.2017 under Section
319 Cr.P.C. on the same ground praying
therein that named but not charge-sheeted
accused Bacchalal be also summoned to
face trial. Same was registered as paper
no. 17 Kha.

 23. It transpires from the record
that no written objection was filed by
charge-sheeted accused to the application
dated 02.03.2017 (paper No. 17 Kha).
 24. Court below examined the
application (paper no. 17 Kha) in the light
of
the
oral
testimonies
of
P.W.-1
Himmatlal, P.W.-2 Sunita and P.W.-3
Ramdhani and opined that complicity of
appellant is also established in the crime in
question. Accordingly, court below by
means of order dated 19.09.2018 allowed
aforementioned
application
and
simultaneously summoned the appellant for
trial in above-mentioned sessions trial.

 25. Thus feeling aggrieved by the
order dated 19.09.2018 passed by courtbelow, appellant has now approached this
Court by means present appeal under
Section
14-A
(I)
Scheduled
Castes/Scheduled Tribes (Prevention of
Atrocities) Act.

 26.
Learned
counsel
for
appellants contends that order impugned in
present appeal is patently illegal and
without jurisdiction. It is an undisputed fact
that first informant/opposite party-2 filed
an application dated 26.10.2016 (paper no.
16 Kha) under Section 319 Cr.P.C.
Aforesaid application was got dismissed as
not pressed without obtaining the leave of
the
Court
to
file
fresh.
However,
irrespective
of
above,
first
informant/opposite party-2 filed subsequent
application dated 02.03.2017 under Section
319 Cr.P.C. (paper no. 17 kha). It is this
application, which has been allowed by
court below by means of the impugned
order.

 27.According to learned counsel
for appellant, though no specific bar is
contained in the Code i.e. Cr.P.C.
regarding filing of second application
under Section 319 Cr.P.C. but public
policy prohibits the filing of second
application.
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
7
 28. Per contra, the learned
A.G.A. has opposed the present appeal. He
contends that second application under
Section
319
Cr.P.C.
filed
by
first
informant/opposite
party-2
was
maintainable as the first application under
Section
319
Cr.P.C.
filed
by
first
informant/opposite
party-2
was
got
dismissed as not pressed in view of inherent
mistake in the application. Since the first
application under Section 319 Cr.P.C. filed
by first informant/opposite party-2 was not
decided on merits, as such, no legal bar
can be attached to the second application
under Section 319 Cr.P.C. The issue as to
whether complicity of appellant is there or
not in the crime in question can be decided
appropriately only during the course of
trial. Since prima-facie something more
than mere complicity of appellant is
established in the crime in question, no
illegality has been committed by court
below in allowing the appeal. As scuh, no
indulgence be granted by this Court in
favour of appellant.

 29. Before proceeding to consider
the veracity of the order impugned in
present appeal, this Court is to initially
required to examine the maintainability
of the application dated 02.03.2017
(paper no. 17 Kha) under Section 319
Cr.P.C. filed by first informant/opposite
party-2.

 30. Since the present appeal
arises out of proceedings under Section
319 Cr.P.C., it is, therefore, desirable to
reproduce Section 319 Cr.P.C. For ready
reference same is extracted hereinunder:-

 "319. Power to proceed against
other persons appearing to be guilty of
offence.
 (1)Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any person
not being the accused has committed any
offence for which such person could be
tried together with the accused, the Court
may proceed against such person for the
offence which he appears to have
committed.

 (2) Where such person is not
attending the Court, he may be arrested or
summoned, as the circumstances of the
case may require, for the purpose
aforesaid.

 (3) Any person attending the
Court, although not under arrest or upon
a summons, may be detained by such
Court for the purpose of the inquiry into,
or trial of, the offence which he appears to
have committed.

 (4) Where the Court proceeds
against any person under sub-section(1),
then-

 (a) the proceedings in respect of
such person shall be commenced a fresh,
and the witnesses re- heard;

 (b) subject to the provisions of
clause (a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

 31. From perusal of Section 319
Cr.P.C., it is apparent that there are no
riders by way of proviso attached to
Section 319 Cr.P.C. Therefore, Court has
to examine the maintainability of the
subsequent application under Section 319
Cr.P.C. in the light of law laid done by this
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Court/Apex Court with reference to the
Code
i.e.
Cr.P.C..
Section
319
Cr.P.C.particularly
when
the
first
application filed by first informant/opposite
party under Section 319 Cr.P.C. was got
dismissed by first informant/opposite party2 as not pressed without obtaining the
leave of the court to file fresh.

 32. To begin with the Code of
Criminal Procedure (hereinafter referred
to as the Code) does not contain any
provision, which bars the filing of a
subsequent application under the Code.

 33. Therefore, of necessity the
Court has to examine the case in hand in
the light of conclusions rendered by Apex
Court/ this Court in similar circumstances.

 34. In Sarguja Transport Service
Vs. State Transport Appellate Tribunal,
M.P., Gwalior and others (1987) 1 SCC 5,
it was held by Court in paragraph 8 of the
report as follows:

 "The Code as it now stands thus
makes
a
distinction
between
'abandonment' of a suit and 'withdrawal'
from a suit with permission to file a fresh
suit. It provides that where the plaintiff
abandons a suit or withdraws from a suit
without the permission, referred to in
subrule (3) of rule 1 of Order XXIII of the
Code, he shall be precluded from instituting
any fresh suit in respect of such subjectmatter or such part of the claim. The
principle underlying rule 1 of Order XXIII
of the Code is that when a plaintiff once
institutes a suit in a Court and thereby avails
of a remedy given to him under law, he
cannot be permitted to institute a fresh suit
in respect of the same subject-matter again
after abandoning the earlier suit or by
withdrawing it without the permission of the
Court to file fresh suit. Invito benificium
non datur. The law confers upon a man no
rights or benefits which he does not desire.
Whoever waives, abandons or disclaims a
right will loose it. In order to prevent a
litigant from abusing the process of the
Court by instituting suits again and again
on the same cause of action without any
good reason the Code insists that he should
obtain the permission of the Court to file a
fresh suit after establishing either of the two
grounds mentioned in sub-rule (3) of rule 1
of Order XXIII. The principle underlying
the above rule is rounded on public policy,
but it is not the same as the rule of res
judicata contained in section 11 of the Code
which provides that no court shall try any
suit or issue in which the matter directly or
sub- stantially in issue has been directly or
substantially in issue in a former suit
between the same parties, or between parties
under whom they or any of them claim,
litigating under the same title, in a Court
competent to try such subsequent suit or the
suit in which such issue has been
subsequently raised, and has been heard
and finally decided by such Court. The rule
of res judicata applies to a case where the
suit or an issue has already been heard and
finally decided by a Court. In the case of
abandonment or withdrawal of a suit
without the permission of the Court to file a
fresh suit, there is no prior adjudi- cation of
a suit. or an issue is involved, yet the
Code provides, as stated earlier, that a
second suit will not lie in sub-rule (4) of rule
1 of Order XXIII of the Code when the first
suit is withdrawn without the permission
referred to in sub-rule (3) in order to
prevent the abuse of the process of the
Court."

 35. Aforesaid judgement was reaffirmed by Apex Court in Upadhyay and
Company Vs. State of U.P. and others
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
9
(1999) 1 SCC 81. Paragraph 13 of the
judgement is relevant for the controversy in
hand. Accordingly same is extracted
herein-under:-

 "The aforesaid ban for filing a
fresh suit is based on public policy. This
Court has made the said rule of public
policy
applicable
to
jurisdiction
under Article
226 of
the Constitution
(Sarguja Iransport Service vs. State
Transport Appellate Tribunal, Gwalior,
1987 1 SCC 5). The reasoning for
adopting it in writ jurisdiction is that very
often it happens, when the petitioner or
his counsel finds that the court is not
likely to pass an order admitting the writ
petition after it is heard for some time,
that a request is made by the petitioner or
his counsel to permit him to withdraw it
without seeking permission to institute a
fresh writ petition. A court which is
unwilling to admit the petition would not
ordinarily grant liberty to file a fresh
petition while it may just agree to permit
withdrawal of the petition. When once a
writ petition filed in a High Court is
withdrawn by the party concerned he is
precluded from filing an appeal against
the order passed in the writ petition
because he cannot be considered as a
party aggrieved by the order passed by the
High Court. If so, he cannot file a fresh
petition for the same cause once again.
The
following
observations
of
E.S.
Venkataramiah, J. (as the learned chief
Justice then was) are to be quoted here:

 "We are of the view that the
principle underlying Rule 1 of Order 23 of
the code should be extended in the
interests of administration of justice to
cases of withdrawal of writ petition also,
not on the ground of res judicata but on
the ground of public policy as explained
above. It would also discourage the
litigant from indulging in bench-hunting
tactics. In any event there is no justifiable
reason in such a case to permit a
petitioner to invoke the extraordinary
jurisdiction of the High Court under Art.
226 of the Constitution once again. While
the withdrawal of a writ petition filed in
High Court without permission to file a
fresh writ petition may not bar other
remedies like a suit or a petition
under Art.32of the constitution since such
withdrawal does not amount to res
judicata, the remedy under Art.226 of the
Constitution should be deemed to have
been abandoned by the petitioner in
respect of the cause of action relied on in
the writ petition when he withdraws it
without such permission."

 36. Learned A.G.A. has referred
to the judgement of Supreme Court in V.
Ravi Kumar Vs. State represented by
Inspector
of
Police,
District
Crime
Branch, Salem Tamilnadu and others
(2019) 14 SCC 568, wherein the Court has
held that second complaint in respect of the
same cause of action is maintainable.
Observation made in paragraphs 16 to 20
of the report are relevant for the
controversy in hand. Accordingly same are
reproduced herein below:

 "16. There is no provision in the
Criminal Procedure Code or any other
statute which debars a complainant from
making a second complaint on the same
allegations, when the first complaint did
not lead to conviction, acquittal or
discharge. In Shiv Shankar Singh v. State
of Bihar and Anr., this Court held:

 "18. Thus, it is evident that the
law does not prohibit filing or entertaining
of the second complaint even on the same
10 INDIAN LAW REPORTS ALLAHABAD SERIES
facts provided the earlier complaint has
been decided on the basis of insufficient
material or the order has been passed
without understanding the nature of the
complaint or the complete facts could not
be placed before the court or where the
complainant came to know certain facts
after disposal of the first complaint which
could have tilted the balance in his favour.
However, the second complaint would not
be maintainable wherein the earlier
complaint has been disposed of on full
consideration
of
the
case
of
the
complainant on merit."

 17. As held by this Court in
Jatinder Singh and Others v. Ranjit Kaur,
it is only when a complaint is dismissed on
merits after an inquiry, that a second
complaint cannot be made on the same
facts. Maybe, as contended by the
respondents, the first complaint was
withdrawn without assigning any reason.
However, that in itself is no ground to
quash a second complaint. 1 (2012) 1 SCC
130 2 2001 (2) SCC 570

 18. In Pramatha Nath Talukdar
and Anr. v. Saroj Ranjan Sarkar, this
Court dealt with the question whether the
second complaint by the respondent
should have been entertained when the
previous complaint had been withdrawn.
The application under Section 482 Cr.P.C.
was allowed and the complaint dismissed
by the majority Judges observing that an
order
of
dismissal
under Section
203Cr.P.C.
was
no
bar
to
the
entertainment of second complaint on the
same facts, but it could be entertained
only in exceptional circumstances, for
example, where the previous order was
passed on an incomplete record or a
misunderstanding of the nature of the
complaint or the order passed was
manifestly absurd, unjust or foolish or
where there were new facts, which could
not, with reasonable diligence, have been
brought
on
record
in
previous
proceedings.

 19. In Poonam Chand Jain and
Anr. v. Fazru, this Court relied upon its
earlier decision in Pramatha Nath (supra)
and held that an order of dismissal of a
complaint was no bar to the entertainment
of second complaint on 3 AIR 1962 SC
876 4 (2010) 2 SCC 631 the same facts,
but it could be entertained only in
exceptional circumstances, such as, where
the
previous
order
was
passed
on
incomplete
record,
or
on
a
misunderstanding of the nature of the
complaint or was manifestly absurd,
unjust or foolish or where there were new
facts which could not, with reasonable
diligence, have been brought on the
record in the previous proceedings.

 20. In Poonam Chand Jain
(supra) this Court further held that:-

 "...this question again came up
for
consideration
before
this
Court
in Jatinder Singh v. Ranjit Kaur. There
also this Court by relying on the principle
in Pramatha Nath held that there is no
provisions in the Code or in any other
statute which debars a complainant from
filing a second complaint on the same
allegation as in the first complaint. But
this Court added when a Magistrate
conducts an enquiry under Section 202 of
the Code and dismisses a complaint on
merits a second complaint on the same
facts could not be made unless there are
"exceptional cirumstances". This Court
held in para 12, if the dismissal of the first
complainant then there is no bar in filing
a second complaint on the same facts.
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
11
However, if the dismissal of the complaint
under Section 203 of the Code was on
merit the position will be different."

 37. The judgement relied upon by
learned A.G.A. is clearly distinguishable.
The Court in V. Ravi Kumar (supra)
concluded that the second complaint shall
be maintainable if the contingencies
specified therein are satisfied.

 38. In the case in hand, the
earlier
application
filed
by
first
informant/opposite
party-2
was
got
dismissed as not pressed but without liberty
to file fresh. Consequently the ratio laid
down in Sarguja Transport (Supra) as
applied in Upadhyay and Company
(Supra) is clearly attracted in the present
case.

 39. In view of the aforesaid
discussion, this Court has no hesitation to
conclude that since the first application under
Section
319
Cr.P.C.
filed
by
first
informant/opposite party-2 was got dismissed
as not pressed without liberty to file fresh, the
second application under Section 319
Cr.P.C. filed first informant/opposite party-2
was clearly not maintainable.

 40. As a result present appeal
succeeds and is liable to be allowed.

 41. It is accordingly allowed.

 42. The impugned order dated
19.09.2018 passed by IInd Additional District
and Sessions Judge/ Special Judge, SC/ST
Act, Kaushambi in Sessions Trial No.192 of
2014 (State Vs. Sunil Kumar and another),
under Sections 304, 308, 323, 504 I.P.C. and
Sections 3 (2) (V) SC/ST Act, Police StationKokhraj, District-Kaushambi is hereby
quashed."
11. Per contra, Sri Ajay Kumar
Srivastava, learned AGA appearing for the
State and Sri Ajay Pratap Singh-II, learned
counsel
appearing
for
the
complainant/opposite
party
No.
2,
submitted that this Court while passing the
judgment dated 04.11.2022 in the case of
Baccha Lal @ Vijay Singh (supra), relied
upon by the applicant's counsel, has not
considered the earlier judgments passed by
the Hon'ble Apex Court on the issue
pertaining to exercise of power under
Section 319 Cr.P.C. and as such, the
judgment dated 04.11.2022 would be of no
help to the applicant.

12. Further submission is that
principle of 'res-judicata' would not be
applicable in the criminal case/proceedings
in issue.

13. It is also submitted that in the
judgment dated 04.11.2022 passed in the
case of Baccha Lal @ Vijay Singh (supra),
this Court has not considered the merits of
the case i.e. testimony of the witnesses of
the prosecution on which basis the
application under Section 319 Cr.P.C. was
moved and in fact the same is based upon
the judgment passed by the Hon'ble Apex
Court in the case of Sarguja Transport
Service Vs. State Transport Appellate
Tribunal, M.P., Gwalior and others;
(1987) 1 SCC 5, subsequently taken note of
in the case of Upadhyay and Company Vs.
State of U.P. and others; (1999) 1 SCC 81,
wherein while holding that the second writ
petition would not be maintainable if
earlier i.e. first writ petition was withdrawn
without seeking leave/permission from the
court to file a fresh petition, the Hon'ble
Apex Court took note of the principles
embodied under Sub-rule (3 & 4) of Rule 1
of Order XXIII and Rule VII of Chapter
XII of Allahabad High Court Rules, 1952
12 INDIAN LAW REPORTS ALLAHABAD SERIES
(in short "Rules of 1952"), and thereafter,
observed that "The principle underlying
the above rule is rounded on public policy,
but it is not the same as the rule of res
judicata contained in section 11 of the
Code which provides that no court shall
try any suit or issue in which the matter
directly or sub- stantially in issue has been
directly or substantially in issue in a
former suit between the same parties, or
between parties under whom they or any
of them claim, litigating under the same
title, in a Court competent to try such
subsequent suit or the suit in which such
issue has been subsequently raised, and
has been heard and finally decided by
such
Court.
The
rule
of
res
judicata applies to a case where the suit or
an issue has already been heard and
finally decided by a Court. In the case of
abandonment or withdrawal of a suit
without the permission of the Court to file
a fresh suit, there is no prior adjudi-
cation of a suit. or an issue is involved,
yet the Code provides, as stated earlier,
that a second suit will not lie in sub-rule
(4) of rule 1 of Order XXIII of the Code
when the first suit is withdrawn without
the permission referred to in sub-rule (3)
in order to prevent the abuse of the
process of the Court."

14. It is further submitted that
taking note of the reasons in the case of
Sarguja Transport (supra) for holding that
second
writ
petition
would
not
be
maintainable and also that (i) in the instant
case, the injured witnesses namely Rajaram
(PW-1)
and
Mahendra
Pratap
Singh/complainant (PW-2), on oath, before
the trial court have indicated the name of
applicant, who was named in NCR dated
08.05.2012 lodged at 23.30 hours at Police
Station- Chanda, District- Sultanpur (basis
of pending criminal case), according to
which, the applicant was involved in the
crime/incident referred in the NCR and also
that (ii) the first application under Section
319 Cr.P.C. was not withdrawn to avoid the
court but for the bonafide reason which
relates to death of Pushpa Singh, no
interference is required by this Court in the
instant case.

15. Clarifying the aforesaid, it is
stated that in the instant case, the first
application under Section 319 Cr.P.C. was
withdrawn for the reason that after filing of
first application under Section 319 Cr.P.C.
i.e. Application No. 30-Kha, the defence
informed that Pushpa Singh, whose name
was indicated in the said application, has
already been expired and therefore the
Application No. 30-Kha was withdrawn
and accordingly on this application, the
order was passed on 03.10.2022 and
thereafter on 08.12.2022, the second
application i.e. Application No. 37-Kha
was preferred under Section 319 Cr.P.C.

16. It is further stated that to the
aforesaid Application No. 37-Kha, two
objections were filed and the plea that
second
application
would
not
be
maintainable was not taken in any of the
objections.

17. Considered the aforesaid and
perused the record.

18. Upon due consideration of the
aforesaid, this Court is of the view that in
the instant case, following issues/questions
are to be answered.

 (i) Whether in the facts of the
case, including that the impugned order
dated 09.02.2023 is based upon the
testimony of injured witnesses namely
Rajaram (PW-1) and Mahendra Pratap
6 All. Deepak Singh @ Subham Singh Vs. State of U.P. & Anr.
13
Singh/complainant (PW-2), interference
is to be caused in the impugned order by
this Court in exercise of inherent power
on the ground that second application
under Section 319 Cr.P.C. was preferred
without seeking leave/liberty/permission
from the Court to file the fresh
application and therefore the same was
not maintainable.

 ii)
Whether
the
judgment
passed by the coordinate Bench of this
Court in the case of Baccha Lal @ Vijay
Singh
(supra)
is
a
per
incuriam
judgment and being so is liable to be
ignored.

19. In order to conclude on the
aforesaid issues/questions, this Court finds
it appropriate to first refer some relevant
paragraphs of some judgments passed by
the Hon'ble Apex Court, wherein the
Hon'ble Apex Court observed with regard
to object of Section 319 Cr.P.C. and in
what manner the concerned court would
exercise its power under Section 319
Cr.P.C., which are as under.

 (A) Relevant paragraphs of the
judgment passed by the Constitution Bench
of the Hon'ble Apex Court in the case of
Hardeep Singh Vs. State of Punjab,
reported in (2014) 3 SCC 92 in the context
of instant case are extracted hereunder:-

 "10 [Ed. : Para 10 corrected vide
Official
Corrigendum
No.
F.
3/Ed.B.J./2/2014 dated 15-1-2014.] . In
order to answer the aforesaid questions
posed, it will be appropriate to refer to
Section 351 of the Criminal Procedure
Code, 1898 (hereinafter referred to as "the
old Code"), where an analogous provision
existed, empowering the court to summon
any person other than the accused if he is
found to be connected with the commission
of the offence. However, when the new
CrPC was being drafted, regard was had to
the 41st Report of the Law Commission
where
in
Paras
24.80
and
24.81
recommendations were made to make this
provision more comprehensive. The said
recommendations read:

 "24.80.Section 351 limited to
offenders
in
courts.-It
happens
sometimes, though not very often, that a
Magistrate hearing a case against certain
accused finds from the evidence that some
person, other than the accused before him,
is also concerned in that very offence or in
a connected offence. It is only proper that
the Magistrate should have the power to
call and join him in the proceedings.
Section 351 provides for such a situation,
but only if that person happens to be
attending the court. He can then be
detained and proceeded against. There is
no express provision in Section 351 for
summoning such a person if he is not
present in court. Such a provision would
make Section 351 fairly comprehensive,
and we think it proper to expressly provide
for that situation.

 24.81.How
is
cognizance
taken?-Section 351 assumes that the
Magistrate proceeding under it has the
power of taking cognizance of the new
case. It does not, however, say in what
manner cognizance is taken by the
Magistrate.
The
modes
of
taking
cognizance are mentioned in Section 190,
and are, apparently, exhaustive. The
question is, whether against the newly
added
accused,
cognizance
will
be
supposed to have been taken on the
Magistrate's
own
information
under
Section 190(1)(c), or only in the manner in
which cognizance was first taken of the
14 INDIAN LAW REPORTS ALLAHABAD SERIES
offence against the accused. ... The
question is important, because the methods of
inquiry and trial in the two cases differ.
About the true position under the existing
law, there has been difference of opinion, and
we think it should be made clear. It seems to
us that the main purpose of this particular
provision is, that the whole case against all
known suspects should be proceeded with
expeditiously, and convenience requires that
cognizance against the newly added accused
should be taken in the same manner against
the other accused. We, therefore, propose to
recast Section 351 making it comprehensive
and providing that there will be no difference
in the mode of taking cognizance if a new
person is added as an accused during the
proceedings. It is, of course, necessary (as is
already provided) that in such a situation the
evidence must he reheard in the presence of
the newly added accused."

 11. Section 319 CrPC as it exists
today, is quoted hereunder: