Bn John vs State Of U.P. And 2 Others
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Allahabad High Court

Bn John vs State Of U.P. And 2 Others on 10 October, 2025

Author: Saurabh Srivastava

Bench: Saurabh Srivastava

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:187323
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
APPLICATION U/S 528 BNSS No. - 31059 of 2025   
 
   Bn John    
 
  .....Applicant(s)   
 
 Versus  
 
   State Of U.P. And 2 Others    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Manish Singh, Sushma Singh   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
Ashish Kumar Srivastava, G.A.   
 
     
 
 Court No. - 77
 
   
 
 HON'BLE SAURABH SRIVASTAVA, J.      

1. Heard Shri Dilip Kumar, learned Senior Advocate assisted by Shri Manish Singh, learned counsel for the applicant, Shri Ashish Kumar Srivastava, learned counsel for opposite party no.1 and the learned AGA.

2. This application under Section 528 BNS has been filed by the applicant to quash the impugned cognizance order dated 23.02.2012 passed by learned Chief Judicial Magistrate, Varanasi as well as charge sheet dated 14.11.2011 in NCR No.119 of 2011 under Sections 504 and 506 IPC, Police Station Cantt District Varanasi and entire criminal proceeding of Case No.2112 of 2012 (State vs. B.N. John).

3. Learned Senior Counsel submitted that through the instant application charge sheet, cognizance order alongwith entire criminal proceedings have been put under challenge under the changed circumstances, since for same relief an Application under Section 482 Cr.P.C No.30411 of 2017 (B.N. John vs. State of U.P. and two others) has already been preferred for same cause of action and the same was disposed of finally with specific direction to the learned Chief Judicial Magistrate, Varanasi to decide discharge application preferred at the behest of Application under Section 239 Cr.P.C, which was pending to be adjudicated finally and till such time that the application is decided, no coercive action be taken against the applicant. Order dated 12.09.2017 passed by a Coordinate Bench of this court has already been appended as Annexure No.10 to the affidavit in support of the application.

4. Learned Senior Counsel made emphasis over his arguments for maintainability of the instant application by way of relying ratio of the judgment rendered by Hon'ble Apex Court in the Case of Anil Khadkiwala vs. State (Government of Nct of Delhi) 2019 0 Supreme (SC) 800 wherein Hon'ble Apex Court cited paragraph-2 of a case reported in Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Mohan Singh and Ors., AIR 1975 SC 1002. Paragraph-8 of the Judgement of Anil Khadkiwala (Supra) is reproduced hereinbelow:-

?Para-8. In Mohan Singh (supra), it was held that a successive application under Section 482, Cr.P.C, under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing:

"2.......Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561A of the CrPC to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondents Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561-A to quash the proceeding. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the Order made by it on the earlier application. Section 561-A preserves the inherent power of the High Court to make such Orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondents Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years?????

5. It is the submission at the behest of the applicant that at the time of hearing of application under Section 482 Cr.P.C No.30411 of 2017 in respect of pendency of discharge application under the provisions of Section 239 Cr.P.C and the same has been duly considered by a Coordinate Bench of this court, in reference of the some undisputed facts which have been mentioned by learned Senior Counsel that the same is still pending inspite of the specific time bound direction passed by Coordinate Bench of this Court dated 12.9.2017 and as such these are the circumstances which are now being changed for entertaining the instant application for specific prayer for seeking quashing of the entire proceedings arising out of Case No.2112 of 2012 arising out of Case No.119 of 2011.

6. Per contra Shri Ashish Kumar Srivastava, learned counsel appearing on behalf of opposite party no.2 as well as learned Additional Government Advocate vehemently opposed the prayer as made through the instant application and rebutted the stand taken up by learned Senior Counsel appearing on behalf of the applicant.

7. Shri Ashish Kumar Srivastava, learned counsel submitted that once the adjudication has already been made by the Coordinate Bench while entertaining the application under Section 482 Cr.P.C No. 30411 of 2017 with specific consideration of the prayer which is the same one as mentioned in the instant application and with the specific wordings which is available in the order dated 12.09.2017 that:

"Having heard the learned counsel for the parties, no case for any interference has been made out. Accordingly, the prayer, as made above, is refused."

8. Shri Ashish Kumar Srivastava, learned counsel further submitted that after having specific consideration as referred above, no cause of action arises which comes under the ambit changed circumstance available before the applicant for preferring instant application and this court is not empowered under Section 528 BNSS either to review or to re-hear the consideration made by Coordinate Bench of this court while entertaining the similar prayer as made in Application 482 No. 30411 of 2017 which was finally disposed of vide order dated 12.09.2017.

9. Learned counsel for opposite party no.2 also sought the attention of the court over the entire order sheet which is also appended alongwith instant application, through which he tried to demonstrate that it is the applicant only who is not permitting learned court concerned for deciding the discharge application preferred at the behest of the applicant himself and by one pretext to another trying to linger the proceedings which might be adjudicated by learned trial court in respect to the order dated 12.09.2017 passed by the Coordinate Bench of this court and as such second application under Section 528 BNSS which was earlier 482 Cr.P.C, on similar set of fact for seeking same prayer is not at all maintainable.

10. After hearing rival submissions extended by the learned counsel for the parties and extending highest regards to the verdict rendered by Hon'ble Apex Court which was relied upon by learned Senior Counsel appearing for the applicant in the case of Anil Khadkiwala (Supra) although, subsequent application under Section 482 Cr.P.C/528 BNSS is maintainable for seeking same prayer but under the changed circumstance, which has to be deeply looked into the facts of the instant matter where the circumstances have been changed after 12.09.2017 or not?

11. The applicant was already extended bail earlier to order dated 12.9.2017, discharge application preferred under Section 239 Cr.P.C was also pending till 12.09.2017, the cognizance of offence over the charge sheet has already been taken up by learned court concerned and the trial was pending on dated 12.09.2017, the only difference from 12.09.2017 to till date is that the specific order and direction passed by Coordinate Bench of this court for deciding discharge application preferred at the behest of applicant within the specific period has not been complied with by learned trial court.

12. During course of arguments, learned Senior Counsel also submitted under the category of changed circumstance after 12.09.2017 that Case crime no. 59 of 2014 against applicant culminated into acquittal, vide order dated 10.02.2018 and the entire proceedings arising out of First Information Report/Case crime no. 290 of 2015 was quashed by Hon'ble Supreme Court vide judgment and order dated 2.1.2025 and in one another matter First Information Report/Case crime no.73/2020, final report has been preferred after conducting detailed investigation by the concerned Investigating Officer on 27.08.2021. It is also submitted by learned Senior Counsel for the applicant that all the above mentioned matter has been instituted at the behest of opposite party no.2 and as such the prayer made through the instant application may be considered under the changed circumstances.

13. The judgment relied upon by learned counsel for the applicant in Anil Khadkiwala (Supra), wherein judgment of Mohan Singh (Supra) has been given credence that a successive application under Section 482 Cr.P.C, under the changed circumstance was held as maintainable and the dismissal of earlier application was no bar to the same. The same ratio has been relied upon by learned Senior Counsel, it has been held in another judgment rendered by Hon'ble Apex Court in the case of Muskan Enterprises vs. State of Punjab and another passed in Criminal Appeal No. 5491 of 2024 arising out of SLP (Crl) No.8072 of 2024 decided on 19.12.2024.

14. In both the above mentioned judgments the law defined by Hon'ble Apex Court in respect of question emerging for deciding the controversy is whether the High Court was justified in dismissing the subsequent petition under Section 482 Cr.P.C and the same has been answered that High Court was unjustified in dismissing the subsequent petition on the ground that the applicant had withdrawn the earlier petition without obtaining leave to file fresh and therefore the petition under consideration was not maintainable. It is also answered by Hon'ble Apex Court that the High Court would have the inherent power to decide any successive petition under Section 482 Cr.P.C and that is not denuded that power by principal of res-judicata. By relying judgment of Bhishm Lal Verma vs. State of U.P passed on dated 30.10.2023 in SLP(Crl) No.7976 of 2023, it has been held that there is no blanket rule against filing of successive petition under Section 482 Cr.P.C, before the High Court and it is also held that if such petition is filed, it must be seen that whether there was any change in facts or circumstances necessitating the filing of such petition.

15. After going through in detail with the judgments relied upon by learned Senior Counsel appearing for the applicant, the meaning of changed circumstance as held by Hon'ble Apex Court is the circumstance related to the matter concerned which is sought to be tried before learned court concerned and the controversy placed before High Court arising out of the specific trial only.

16. So far as the changed circumstance as referred by the learned Senior Counsel is of different Case crime nos. on different facts which enlarged the adjudication by different court which includes Hon'ble Apex Court also and in one of the matters where the final report has been submitted by concerned Investigating Officer after conducting detailed investigation. But so far as facts relating to the instant matter is concerned, there is hardly any changed circumstance since 12.09.2017 i.e, the date when the entire prayer as mentioned in the instant petition has already been considered by Coordinate Bench of this Court and by way of refusing of the prayers which are similar to the prayers available in the instant petition, only direction has been extended for learned Trial court to expedite disposal of the application under Section 239 Cr.P.C that too within a period of three months and as such the instant matter does not come under the ambit of changed circumstance as defined by Hon'ble Apex Court.

17. After having the facts of the matter from the learned counsel appearing for the parties, it is quite shocking to this court that the entire trial has been kept pending inspite of the specific orders passed by Coordinate Bench of this Court for deciding discharge application preferred at the behest of the applicant specifically within three months but the same is still pending to be decided again.

18. The reasons is also not available in the order sheet that under which circumstances the application under Section 239 Cr.P.C, has been kept pending for final decision by learned trial court. Prayer made through instant application once denied by Coordinate Bench of this court and there is hardly any change in the circumstances, entire prayer sought by the applicant through the instant application is not maintainable and as such the instant application stands dismissed.

19. However, learned District Judge, Varanasi is hereby directed to personally look into the matter that under which circumstances order dated 12.09.2017 passed by Coordinate Bench of this court for deciding discharge application, preferred at the behest of applicant is still pending before learned court of Chief Judicial Magistrate, Varanasi and take proper and adequate measures to get the order dated 12.09.2017 complied within shortest hearing period, since the time extended by the Coordinate Bench has already been expired way back in the year 2017 itself.

(Saurabh Srivastava,J.)

October 10, 2025

Rakesh