Omveer Singh vs State Of U.P. And Another

Saurabh Srivastava, J

Heard Sitesh Kumar, learned counsel appearing on behalf of petitioner and Sri S.K.Verma, learned counsel appearing on behalf of respondent no. 2 and learned AGA for the State.

Present petition has been preferred with the following prayers:-

"1. issue an order or direction in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India by setting aside the impugned order dated 20.09.2024 passed by Additional District and Session Judge, Court no. 15, Agra in Criminal Revision no. 380 of 2024 (Omveer Singh vs. State and another) as well as impugned order dated 24.05.2024 passed by Additional Chief Judicial Magistrate, Court no. 2, Agra in Criminal Case no. 928 of 2016 (State of U.P. vs. Omveer Singh)."

While challenging the order dated 24.05.2024 and 20.09.2024 passed by learned Additional Chief Judicial Magistrate, Court no. 2, Agra and learned Additional District and Session Judge, Court no. 15, Agra respectively, learned counsel for the petitioner confined his argument precisely over the issue that once the application preferred at the behest of respondent no. 2 under Section 323 of Cr.P.C. has been dismissed vide order dated 01.06.2018 subsequent application under Section 323 of Cr.P.C. was not maintainable which was allowed by learned Additional Chief Judicial Magistrate, Court no. 2, Agra and the same was upheld vide order dated 20.09.2024 passed by learned Additional District and Sessions Judge, Court no. 15, Agra.

Sri S.K.Verma, learned counsel for respondent no. 2 vehemently opposed the prayer as made in the petition and rebutted the stand taken up by learned counsel for the petitioner on the ground that the previous application preferred at the behest of respondent no. 2 under Section 323 Cr.P.C. was at the stage of completion of examination-in-chief and the subsequent application under the same section i.e. 323 of Cr.P.C. was preferred after cross-examination and as such both the applications were filed at different stages and as such the plea taken up by learned counsel for the petitioner is not tenable in the eye of law that subsequent application for same cause of action is not maintainable as contended during arguments placed before learned Additional Chief Judicial Magistrate, Agra as well as before learned Additional District and Sessions Judge, Agra while pressing their prayer and the same were decided in the most justified manner in shape of the orders which impugned the present petition.

After hearing the learned counsels for the parties, one thing is crystal clear that the stage of preferring applications under Section 323 Cr.P.C. at the behest of respondent no. 2 was altogether different, the first application was preferred at the stage of completion of examination-in-chief and the second was filed after completion of cross-examination. The contention recorded by learned Additional Chief Judicial Magistrate, Court no. 2, Agra has been taken up but it is apparent the vital issue has not been dealt properly that the statement recorded at the time of examination-in-chief was the same and reiterated at the time of recording statement under the cross-examination. No specific finding has been recorded that under which circumstances once the statements are the same how the application under Section 323 Cr.P.C. which was already dismissed vide order dated 01.06.2018 has been allowed vide order dated 24.05.2024. The similar issue has been raised at the time of filing criminal revision no. 380 of 2024 (Omveer Singh vs. State of U.P. and others) and the apparent error of law available in the order dated 24.05.2024 was highlighted but unfortunately the same has not been properly dealt with by learned revisional court.

In view of the aforementioned facts and circumstances, order dated 24.05.2024 passed by learned Additional Chief Judicial Magistrate, Court no. 2, Agra as well as order dated 20.09.2024 passed by learned Additional District and Sessions Judge, Court no. 15, Agra are hereby set aside. Matter is remitted back to learned court of Additional Chief Judicial Magistrate, Court no. 2, Agra for deciding the objection along with application preferred at the behest of respondent no. 2 under Section 323 Cr.P.C. as fresh within a period of 3 months from the date of production of certified copy of this order.

The instant petition stands allowed accordingly.