It is further prayed that this Hon'ble Court may graciously be vs Rajesh Pratap Singh and another) arisen out of the case crime on 13 Jun 2025

Judgment

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." 2

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 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 3 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 06-06-2023 dks izLrqr gksA"

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. 37-Kha 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. 4

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. 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 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" 5

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 court-below, 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.

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 6 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 herein- under:- "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 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 7 319 Cr.P.C. was got dismissed by first informant/opposite party-2 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 subject-matter 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 8 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 re-affirmed by Apex Court in Upadhyay and Company Vs. State of U.P. and others (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 9 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 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 10 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. 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 Station-Kokhraj, 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 11 (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 (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- 12 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. 13 (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 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 14 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 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: “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 afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court 15 took cognizance of the offence upon which the inquiry or trial was commenced.” (emphasis supplied) Section 319 CrPC springs out of the doctrine 12. damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

14. The submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of CrPC and the judgments that have been relied on for the said purpose. The controversy centres around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised.

15. It would be necessary to put on record that the power conferred under Section 319 CrPC is only on the court. This has to be understood in the context that Section 319 CrPC empowers only the court to proceed against such person. The word “court” in our hierarchy of criminal courts has been defined under Section 6 CrPC, which includes the Courts of Session, Judicial Magistrates, Metropolitan Magistrates as well as Executive Magistrates. The Court of Session is defined in Section 9 CrPC and the Courts of the Judicial Magistrates have been defined under Section 11 thereof. The Courts of the Metropolitan Magistrates have been defined under Section 16 CrPC. The courts which can try offences committed under the Penal Code, 1860 or any offence under any other law, have been specified under Section 26 CrPC read with the First Schedule. The Explanatory Note (2) under the heading of “Classification of offences” under the First Schedule specifies the expression “Magistrate of First Class” and “any Magistrate” to include Metropolitan Magistrates who are empowered to try the offences under the said Schedule but excludes Executive Magistrates.

16. It is at this stage that the comparison of the words used under Section 319 CrPC has to be understood distinctively from the words used under Section 2(g) defining an inquiry other than the trial by a Magistrate or a court. Here the legislature has used two words, namely, the Magistrate or court, whereas under Section 319 CrPC, as indicated above, only the word “court” has been recited. This has been done by the legislature to emphasise that the power under Section 319 CrPC is exercisable only by the court and not by any officer not acting as a court. Thus, the Magistrate not functioning or exercising powers as a court can make an inquiry in a particular proceeding other than 16 a trial but the material so collected would not be by a court during the course of an inquiry or a trial. The conclusion therefore, in short, is that in order to invoke the power under Section 319 CrPC, it is only a Court of Session or a Court of Magistrate performing the duties as a court under CrPC that can utilise the material before it for the purpose of the said section.

17. Section 319 CrPC allows the court to proceed against any person who is not an accused in a case before it. Thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. He can either be a person named in Column 2 of the charge- sheet filed under Section 173 CrPC or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. He has to be a person whose complicity may be indicated and connected with the commission of the offence.

18. The legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot-free by being not arraigned in the trial in spite of the possibility of his complicity which can be gathered from the documents presented by the prosecution.

19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.

43. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate.