Second S.319 CrPC Plea Maintainable Even if First Withdrawn Without Liberty; Contrary Judgment 'Per Incuriam': Allahabad HC - 2025-07-10

Second Application Under Section 319 CrPC Maintainable Despite Prior Withdrawal Without Liberty, Rules Allahabad High Court

Lucknow, India - In a significant ruling clarifying the scope of Section 319 of the Code of Criminal Procedure (Cr.P.C.), the Allahabad High Court has held that a second application to summon an additional accused is maintainable, even if a prior similar application was withdrawn without seeking liberty from the court to file a fresh one. Justice Saurabh Lavania emphasized that the primary consideration is the bona fide nature of the withdrawal and the strength of the evidence presented.

The court, while dismissing an application filed by Deepak Singh @ Subham Singh , also declared a coordinate bench's previous judgment in Baccha Lal @ Vijay Singh (2018) as per incuriam for failing to consider established Supreme Court precedents on the matter.

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Background of the Case

The case originates from a 2012 crime where Deepak Singh , initially named in the First Information Report (FIR), was not charge-sheeted by the police. During the trial (S.T. No. 115/2016), the complainant filed an application (No. 30-Kha) under Section 319 Cr.P.C. to summon Deepak Singh and another individual, Pushpa Singh , to face trial based on witness testimonies.

This application was withdrawn on October 3, 2022, after it was discovered that Pushpa Singh had passed away. Subsequently, the complainant filed a second application (No. 37-Kha) to summon only Deepak Singh . On February 9, 2023, the trial court in Sultanpur allowed this application, relying on the testimonies of three prosecution witnesses, including two injured witnesses, who implicated Deepak Singh in the crime.

Deepak Singh challenged this summoning order before the High Court, arguing that the second application was not maintainable.

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Arguments Presented

Applicant's Counsel ( Manuvendra Singh ): The primary argument was that the first application was dismissed as withdrawn without the court's permission to file a fresh one. Relying on the High Court's judgment in Baccha Lal @ Vijay Singh , counsel contended that public policy, as interpreted from the Supreme Court's ruling in Sarguja Transport Service (1987) , prohibits the filing of a second application in such circumstances.

Respondents' Counsel ( Ajay Kumar Srivastava and Ajay Pratap Singh-II): The State and the complainant argued that the principles of res judicata and the bar on second applications, which are rooted in civil procedure, do not strictly apply to criminal proceedings. They submitted that the first application was withdrawn for a bona fide reason—the death of one of the proposed accused—and not to engage in "bench-hunting" or abuse the court's process. They further contended that the Baccha Lal judgment was per incuriam as it overlooked numerous Supreme Court decisions on the expansive and justice-oriented nature of Section 319 Cr.P.C.

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Court's Analysis and Legal Precedents

Justice Lavania undertook a detailed examination of the purpose of Section 319 Cr.P.C., citing the Constitution Bench judgment in Hardeep Singh vs. State of Punjab (2014) . The court reiterated that the section is founded on the doctrine judex damnatur cum nocens absolvitur (a judge is condemned when the guilty is acquitted).

Key Judicial Excerpt :

"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 Court distinguished the Sarguja Transport case, noting that its rationale was to curb the malpractice of bench-hunting in writ petitions. It observed that subsequent Supreme Court judgments, like Sarva Shramik Sanghatana (2008) , had clarified that the Sarguja ruling is not a "Euclid's formula" and its application depends on the facts, particularly the bona fides of the withdrawal.

The Court held that the public policy in criminal law is to ensure that "evil deeds ought not to remain unpunished" and that a known suspect should not go scot-free without trial. Quashing the summoning order based on a procedural technicality, especially when supported by the testimony of injured witnesses, would defeat this fundamental principle.

Declaring the Baccha Lal judgment per incuriam , Justice Lavania noted:

"The judgment/decision in the case of Baccha Lal @ Vijay Singh (Supra) is not in consonance with the view of the Hon'ble Apex Court... in which, the Hon'ble Apex Court has explained the object of Section 319 Cr.P.C. and how power under Section 319 Cr.P.C. would be exercised."

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Final Decision

The High Court found no illegality in the trial court's order summoning Deepak Singh . It reasoned that the order was based on strong evidence from injured witnesses, whose testimony carries significant evidentiary value. The withdrawal of the first application was deemed bona fide and did not preclude the filing of a second one.

Concluding that interfering with the order would allow a potential accused to evade trial, which is contrary to public policy, the court dismissed Deepak Singh 's application.