IMPORTANT POINT
The court affirmed that a second application under Section 125 Cr.P.C. is maintainable despite the dismissal of the first without liberty, emphasizing the continuing duty to maintain.

JUDGMENT :

Hon'ble Saurabh Lavania, J.

1. Heard learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. and perused the record.

2. By means of this application, the applicant has sought the following main relief(s):-

"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned order dated-31/08/2024, passed by the Learned Additional Principal Judge-07, Family Court, Lucknow, passed in Criminal Miscellaneous Case Number-973/2023 in Saumya Sinha vs. Shankh Kumar Saxena, U/s.125 Cr.P.C. annexed herewith as Annexure No.1 to this Application and may also dismiss the case so that the applicant may live peacefully under the protection of law."

3. Vide order, under challenge, dated 31.08.2024, the Additional Principal Judge-7, Family Court, Lucknow (hereinafter referred to as "trial court") entertained the application preferred by the opposite party No. 2/Somya Saxena under Section 125 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") registered as Case No. 973/2023 (Somya Sinha vs. Shankh Kumar Saxena).

4. Brief facts of the case in hand are to the effect that an application dated 04.01.2023, registered as Criminal Case No. 25/2023 (Somya Saxena vs. Shankh Saxena), under Section 125 Cr.P.C. was preferred by the opposite party No. 2 in the court of Principal Judge, Family Court, Lucknow and thereafter, on account of some typographical error, the opposite party No. 2/Somya Saxena preferred an application dated 16.05.2023 seeking withdrawal of the application under Section 125 Cr.P.C. preferred by her registered as Criminal Case No. 25 of 2023. The contents of the application dated 16.05.2023 are extracted hereunder:-

5. From a perusal of above quoted portion of the application dated 16.05.2023, it is apparent that on account of some typographical error, the opposite party No. 2/Somya Saxena, on account of some errors in the application under Section 125 Cr.P.C., moved an application before the court concerned permitting her to withdraw the application under Section 125 Cr.P.C. i.e. Case No. 25/2023 (Somya Saxena vs. Shankh Saxena) and this prayer was sought with an intention to file a fresh case under the said provision i.e. Section 125 Cr.P.C.

6. Thereafter, the Principal Judge, Family Court, Lucknow vide order dated 21.05.2023 after considering the averments made in above quoted application, dismissed the said case for want of prosecution and no liberty was granted to opposite party No. 2/Somya Saxena to file a fresh case under Section 125 Cr.P.C. The order dated 21.05.2023 reads as under:-

7. After the aforesaid, the opposite party No. 2/Somya Saxena preferred a fresh case registered as Case No. 973 of 2023 (Somya Sinha vs. Shankh Kumar Saxena), in which, an objection was filed by the applicant raising the issue of maintainability of the case on the ground, in nutshell, to the effect that in view of principle of "Res Judicata", subsequent application under Section 125 Cr.P.C. is not maintainable. In other words, it has been stated by the applicant before the court concerned that liberty was not granted to the opposite party No. 2/Somya Saxena to file a fresh case, as such, the instant application under Section 125 Cr.P.C. is neither entertainable nor maintainable and being so, without adjudicating the same on merits, it is liable to be dismissed.

8. The trial court thereafter considering the aforesaid facts including the ground aforesaid taken by the applicant herein that earlier application filed by the opposite party No. 2/Somya Saxena registered as Case No.25/2023 (Somya Saxena vs. Shankh Saxena) was dismissed as withdrawn without liberty to file a fresh case as also the observations made by this Court in the judgment passed in the case of Shyam Bahadur Singh vs. State of U.P. reported in 2023 AHC 914038 rejected the objection of the opposite party/applicant herein vide order impugned dated 31.08.2024 and entertained the application fixing