# Dharm Pal Singh v. State of U.P. & Anr

- **Citation:** (2025) 3 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-24
- **Case number:** Matter Under Article 227 No. 7777 of 2024
- **Bench:** Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharm-pal-singh-v-state-of-u-p-anr-53080
- **Pages:** 5

## Headnote

Law-The
Constitution
of
India,1950-Artcle 227, 20(2)-Doctrine of
Double
jeopardy-
The
plea
of
Double
Jeopardy as relied by learned counsel for the
respondent No. 2 has no application, because
the respondent was neither convicted nor
acquitted in any matter previously having the
same set of facts--- learned court below instead
of taking cognizance under Sections 279, 304A
IPC has taken cognizance under Sections 304,
323, 325 IPC instead of Section 302 IPC which
is well in accordance with law and is not barred
by the doctrine of Double Jeopardy---Impugned
order dated 13.03.2024 passed by learned court
below is hereby set aside as it is not barred by
Article 20(2)- (Para 23, 25-27)--Petition
partly allowed. (E-15)

List of Cases cited:

TP Gopalakrishnan Vs St. of Kerala (2022) 14
SCC 323

## Text

3 All. Dharm Pal Singh Vs. State of U.P. & Anr.
357
to the petitioner assuring him such
employment
clearly
in
pursuance
of
Government Order dated 21.09.1981. There
is no separate or independent policy which
was being implemented by the Gorakhpur
Development Authority for land owners
whose land have been acquired. The green
card cannot vest rights in the petitioner
beyond the Government Order dated
21.09.1981. The Government Order dated
21.09.1981 has been quashed by the
learned Full Bench of this Court in
Ravindra Kumar (supra).

8. No lawful authority has been
shown to be vested in the Gorakhpur
Development
Authority
to
create
an
independent
policy
for
grant
of
employment to land owners beyond the
terms of the Government Order dated
21.09.1981 has been shown to the Court.

9. In this wake the prayer made by
the petitioner to mandamus the Respondent
no. 2 Gorakhpur Development Authority to
grant employment to the petitioner in
pursuance
of
the
said
Green
Card
(Annexure No. 2 to the Writ Petition)
cannot be granted, inasmuch as, the same
would be in the teeth of the judgement of
Full Bench in Ravindra Kumar (supra).
A mandamus cannot be issued to compel
State authorities to act in contravention of
law. Judicial discipline and rule of law
forbids the Court to do so.

10. In wake of the preceding
discussion, the writ petition is liable to be
dismissed and is dismissed.
----------
(2025) 3 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2025

BEFORE
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Matter Under Article 227 No. 7777 of 2024

Dharm Pal Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Dr. Kamlesh Kumar, Rakesh Kumar

Counsel for the Respondents:
G.A.

Criminal
Law-The
Constitution
of
India,1950-Artcle 227, 20(2)-Doctrine of
Double
jeopardy-
The
plea
of
Double
Jeopardy as relied by learned counsel for the
respondent No. 2 has no application, because
the respondent was neither convicted nor
acquitted in any matter previously having the
same set of facts--- learned court below instead
of taking cognizance under Sections 279, 304A
IPC has taken cognizance under Sections 304,
323, 325 IPC instead of Section 302 IPC which
is well in accordance with law and is not barred
by the doctrine of Double Jeopardy---Impugned
order dated 13.03.2024 passed by learned court
below is hereby set aside as it is not barred by
Article 20(2)- (Para 23, 25-27)--Petition
partly allowed. (E-15)

List of Cases cited:

TP Gopalakrishnan Vs St. of Kerala (2022) 14
SCC 323

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Dr. Kamlesh Kumar, learned
counsel for the petitioner, Sri Shashi
Bhushan Rai, learned counsel for the
respondent No. 2, Sri Ratan Singh, learned
A.G.A.-I for the State and perused the
record.

2. By means of the present petition
under Article 227 of the Constitution of
India, the petitioner has prayed to set aside
358 INDIAN LAW REPORTS ALLAHABAD SERIES
the impugned order dated 13.03.2024
passed by learned Additional District and
Sessions Judge, Court No. 1, Amroha in
Criminal Revision No. 65 of 2023 (Sanjeev
Vs. State of U.P. and another) and order
dated
05.01.2023
passed
by
learned
Additional Civil Judge (S.D.)/Additional
Chief Judicial Magistrate, First, Amroha in
Case No. 2319 of 2019 arising out of Case
Crime No. 453 of 2017 (State Vs. Sanjeev)
under Sections 304, 323, 325 IPC, Police
Station-Amroha Dehat, District-Amroha.

3. Briefly stated, the petitioner,
Dharm Pal Singh, who is the first
informant, lodged an FIR on 15.12.2017
against respondent No. 2 Sanjeev bearing
Case Crime No. 453 of 2017 under
Sections 279, 304A IPC, P.S.-Amroha
Dehat
District-Jyotibhaphule
Nagar
alleging that on 29.11.2017 the respondent
No. 2 Sanjeev came to his house and
around 6:00 pm took away his son Kapil
along with him on his motorcycle to attend
a party. On the same night at 9:30 pm
respondent No. 2 called the petitioner and
informed that Kapil had received injuries
and was admitted at Doctor Garg Hospital.
The petitioner with his wife Rajwati and his
son Sanjeev Kumar went to the hospital
and found his son lying soaked in blood.
The respondent No. 2 Sanjeev was present
at the hospital.

4. Thereafter, Kapil was referred to
the Glokul Hospital and then to Kothiwal
Hospital and thereafter to Atul Jain
Hospital
at
Moradabad
where
Kapil
breathed his last.

5. The panchayatnama of the
deceased was conducted on 15.12.2017 and
the autopsy was conducted on 16.12.2017.
The FIR was lodged on 15.12.2017 bearing
Case Crime No. 453 of 2017 under Sections
279, 304A IPC, P.S.-Amroha Dehat DistrictJyotibhaphule Nagar.

6. While its investigation was in
progress, the petitioner moved an application
dated 04.01.2018 under Section 156(3)
Cr.P.C. before the Court of Chief Judicial
Magistrate, Amroha against respondent No. 2
Sanjeev and two unknown to lodge fresh FIR
under Section 302 IPC alleging the same
incident. The said application was allowed on
18.01.2018 directing the Officer In-charge,
Police Station-Amroha Dehat to register the
case. Thus, another FIR was registered
against the respondent No. 2 Sanjeev and two
unknown persons on 08.02.2018 bearing
Case Crime No. 27 of 2018, under Section
302 IPC, P.S.-Amroha Dehat, DistrictAmroha.

7. As the allegations in both the FIRs
related to the same incident, the investigation
of both the case crime numbers i.e. Case
Crime No. 453 of 2017 and 27 of 2018 were
clubbed together vide CD No. 13 dated
26.02.2018.

8. However, the Investigating
Officer submitted the charge sheet in Case
Crime No. 453 of 2017 under Sections 279,
304A IPC, P.S.-Amroha Dehat, DistrictAmroha on 01.03.2018, but due to lack of
evidence under Section 302 IPC, therefore,
the case crime No. 27/2018 under Section
302 IPC was merged in it.

9. Being aggrieved, the petitioner
moved an application on 22.06.2018, under
Sections 173(8) and 190(1)(b) of the Cr.P.C.
before the Chief Judicial Magistrate, Amroha
to further investigate the Case Crime No. 27
of 2018 under Section 302 IPC.

10. The learned Magistrate after
considering the entire material on record
3 All. Dharm Pal Singh Vs. State of U.P. & Anr.
359
allowed the application on 08.05.2019
directing to further investigate the matter.
The Investigating Officer after completion
of the further investigation had submitted
final report on 18.11.2019.

11. Again, the petitioner being
dissatisfied, filed an application dated
02.04.2022 against the said Final Report
before First Additional Chief Judicial
Magistrate, Amroha to pass appropriate
order on the basis of material available on
record.

12. The learned Additional Civil
Judge, (S.D.)/Additional Chief Judicial
Magistrate-I, Amroha vide his order dated
05.01.2023 rejected the final report dated
18.11.2019 and took cognizance under
Sections 304, 323, 325 IPC summoning the
respondent No. 2 to face the trial instead of
Section 302 IPC.

13. Now, the respondent No. 2
being aggrieved by order dated 05.01.2023
filed a Criminal Revision bearing No. 65 of
2023 Sanjeev Vs. State of U.P. and another
before the Court of Additional District and
Sessions Judge, Court No. 1, Amroha
which was allowed vide the impugned
order dated 13.03.2024.

14. Hence, the petitioner/first
informant has challenged the orders dated
05.01.2023 and 13.03.2024 under Article
227 of the Constitution of India.

15. The main submission of
learned counsel for the petitioner is that the
learned Trial Court has not considered the
gravity of the offence and the allegations
levelled against the respondent No. 2 and
has passed the impugned orders dated
05.01.2023 and 13.03.2024 in a mechanical
and cursory manner and did not take
cognizance under Section 302 IPC.

16. Per contra, learned counsel for
respondent No. 2 has refuted the aforesaid
contention
on
the
ground
that
the
proceedings initiated against the respondent
No. 2 is barred by the doctrine of Double
Jeopardy, hence, respondent No. 2 cannot
be prosecuted twice for the same offence.

17. Upon hearing learned counsel
for the parties and from the perusal of
record, it transpires that the petitioner is the
first informant who lost his son Kapil, who
was a pillion driver on a motorcycle driven
by the respondent No. 2 Sanjeev. According
to the post mortem report, the cause of
death was Coma due to accidental injury.
The FIR was registered against the
respondent No. 2 under Sections 279 and
304A IPC on 15.12.2017. During the
pendency of the investigation in the said
FIR, the petitioner/informant gave an
application under Section 156(3) Cr.P.C. on
04.01.2018 to lodge another FIR under
Section 302 IPC for the same incident. The
said application was allowed and another
FIR was registered against the respondent
No. 2 bearing Case Crime No.27 of 2018,
under Section 302 IPC, P.S.-Amroha Dehat
District-Jyotibhaphule Nagar. As both the
FIRs related to the same incident, therefore,
their investigation were clubbed together
and the charge sheet was filed only in Case
Crime No. 453 of 2017 under Sections 279
and 304A IPC and as no material was
found of committing murder, therefore, the
investigation in Case Crime No. 27 of 2018
was merged in Case Crime No. 453 of
2017. At the belated stage, the petitioner
moved an application seeking further
investigation under Sections 173(8) and
190(1)(b) in Case Crime No. 27 of 2018
under Section 302 IPC which was allowed
360 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Investigating Officer was directed
to further investigate the matter. After the
further investigation in Case Crime No. 27
of 2018, it resulted in submission of a final
report. Aggrieved by the final report, the
petitioner again moved an application for
the passing of the appropriate order in
which the learned Additional Civil Judge
Senior Division/Chief Judicial Magistrate,
Amroha rejected the final report, taking
cognizance under Sections 304, 323, 325
IPC instead of Section 302 IPC and
summoned the respondent No. 2 to face the
trial. The petitioner, being aggrieved by the
said summoning order preferred a criminal
revision which was allowed vide order
dated 13.03.2024 and the summoning order
dated 05.01.2023 was set aside.

18. After going through the entire
facts and circumstances, it transpires that both
the FIRs relate to the same incident which
took place on 29.11.2017. As the respondent
No. 2 was prosecuted for the same incident in
two separate FIRs, therefore, the investigation
of both the FIRs were clubbed together but
ultimately the chargesheet was submitted in
Case Crime No. 453 of 2017 under Sections
279, 304A IPC. Subsequently, on the basis of
an application moved by the petitioner and
looking to the gravity of the offence,
cognizance was taken under Sections 304, 323
and 325 IPC instead of Sections 279 and 304A
IPC.

19. From the perusal of the
impugned order dated 13.03.2024, it is
evident that the revision filed by the
respondent No. 2 was allowed on the
ground that the revisionist was prosecuted
twice for the same offence which is barred
by the doctrine of Double Jeopardy.

20. At this juncture, it is necessary
to refer Article 20(2) of the Constitution of
India which speaks on the doctrine of
Double Jeopardy. The Article reads as
under:

"No
person
shall
be
prosecuted and punished for the
same offence more than once."

21. On a plain reading of Sub
Clause (2) of Article 20 of the Constitution
of India, it is clear that the said provision
bars the second prosecution only when the
accused has been both prosecuted and
punished for the same offence previously.
But this clause does not bar subsequent trial
if the ingredients of the offences in the
previous and subsequent trials are distinct.

22. Recently, the Hon'ble Supreme
Court in TP Gopalakrishnan vs. State of
Kerala (2022) 14 SCC 323 Para 29 has
held that "There are three conditions for the
application of the clause. Firstly, there
must have been previous proceeding before
a court of law or a judicial tribunal of
competent jurisdiction in which the person
must have been prosecuted. The said
prosecution must be valid and not null and
void or abortive. Secondly, the conviction
or acquittal in the previous proceeding
must be in force at the time of the second
proceeding in relation to the same offence
and same set of facts, for which he was
prosecuted and punished in the first
proceeding.
Thirdly,
the
subsequent
proceeding must be a fresh proceeding,
where he is, for the second time, sought to
be prosecuted and punished for the same
offence and same set of facts. In other
words, the clause has no application when
the subsequent proceeding is a mere
continuation of the previous proceeding, for
example, where an appeal arises out of
such acquittal or conviction. In order to
sustain a plea of double jeopardy, it must
3 All. Ram Bharosey & Ors. Vs. State of U.P.
361
be shown that all the aforesaid
conditions of this clause are satisfied."

25. While applying the aforesaid
doctrine in the instant matter, it can be
fairly stated that the plea of Double
Jeopardy as relied by learned counsel for
the respondent No. 2 has no application,
because the respondent No. 2 Sanjeev was
neither convicted nor acquitted in any
matter previously having the same set of
facts. Therefore, the order passed by the
revisional court has been decided on
incorrect application of law.

26. After analysing the matter, it
can be concluded that the investigation in
both the FIRs were clubbed together and
chargesheet was submitted under Sections
279 and 304A IPC but subsequently
looking to the gravity of the offence,
cognizance was taken by the learned
Additional
Chief
Judicial
MagistrateI/ACJM-I, Amroha on 05.01.2023 under
Sections 304, 323, 325 IPC setting aside
the final report submitted in Case Crime
No. 27 of 2018 dated 18.11.2019.

27. The learned court below in
Case Crime No. 253 of 2017 instead of
taking cognizance under Sections 279,
304A IPC has taken cognizance under
Sections 304, 323, 325 IPC instead of
Section 302 IPC which is well in
accordance with law and is not barred by
the doctrine of Double Jeopardy.

28. Accordingly, the order dated
13.03.2024 passed by learned Additional
District and Sessions Judge, Court No. 1,
Amroha, is hereby set aside as it is not
barred by Article 20(2) of the Constitution
of India, the doctrine of Double Jeopardy.
The order dated 05.01.2023 does not
require any interference. The trial Court is
directed to proceed against respondent No.
2 in accordance with law.

29. The petition is, partly
allowed.
----------
(2025) 3 ILRA 361
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 186 of 1993

Ram Bharosey & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Apul Misra, Sri Devendra Pratap, Sri Vivek
Shukla

Counsel for the Respondent:
A.G.A., Sri Ashvani Tripathi, Sri Brijesh Sahai (Sr.
Advocate), Sri Jai Singh Yadav, Sri Jitendra
Singh,
Sri
Pradeep
Kumar
Mishra,
Sri
Raghuvanshi Misra, Sri Vinay Saran (Sr. Adv.)

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 147, 148 & 149 - Conviction
based
on
circumstantial
evidence
-
Murder alleged over property dispute - No
recovery of dead body - Doubtful recovery
of spectacle frame and blood-stained stick
-
Forensic
reports
absent
-
Key
prosecution witnesses turned hostile -
Alleged enmity as motive not supported
by
consistent
testimony
-
Chain
of
circumstances broken - Trial court erred
in conviction - Held, in absence of
conclusive chain of circumstances pointing
exclusively to guilt of accused, conviction
unsustainable - Acquittal directed-Appeal
allowed. (Paras 11 to 15, and 22)

HELD: