STATE OF U P Vs. B N SINGH

JUDGEMENT

(1.) I agree that the appeal must be dismissed. And in view of the importance of the questions raised, I pro pose to set out my reasons.

(2.) THE facts are already set put in the judgment of my brother Gulati, and I need not repeat them here.

(3.) THE first contention is that the judgment of this Court in Special Appeal No. 473 of 1960 operates as res judicata and this appeal should also be disposed of on the ground which found favour there. I cannot agree. That case was taken in appeal to the Supreme Court, and the appeal was allowed to be with drawn with liberty to file a fresh peti tion. In the circumstances, it cannot be said that any finding in the appeal con cludes the questions rose before us. The Supreme Court expressed no opinion on the merits of the points raised in the appeal and cannot be taken, therefore, to have approved of what was decided by this Court. Indeed while allowing the appeal to be withdrawn it expressly granted liberty to the respondent to file a fresh petition. The first contention is rejected.