Upendra Chamanlal Sehgal and Others vs State of Gujarat and Another

M.B. Shah, J.—The petitioners had filed this Miscellaneous Application for quashing and setting aside the order passed by the Additional

Executive Magistrate on 13-5-83 u/s 146 of the Criminal Procedure Code attaching the disputed property.

It is the say of the petitioners that respondent No. 2 made an application on 13th May 1983 to the Executive Magistrate, Surat, u/s 145 of the

Criminal Procedure Code stating that the dispute between the petitioners and the respondent was likely to cause breach of peace and, therefore,

he bad issued notices to both the parties to remain present before him for making written submissions on 23-5-83.

Before filing of this application the petitioners have admitted in paragraph 6 of the petition that they have preferred one Misc. Criminal

Application No. 1143 of 1983 before the Hon''ble Court u/s 482 of the Code for quashing and setting aside the order passed by the Executive

Magistrate u/s 145 and u/s 146 of the Code. The order passed u/s 145 was marked as Annexure ""A"" and order u/s 146 was marked as Annexure

B"". The said matter came up for hearing before D.H. Shukla, J. on 14th June 1983 and the Court has passed the order in the following terms:

Heard Mr. M.C. Kapadia, advocate for the petitioners. On perusal of the papers and in view of the fact that the impugned order is a notice to

show cause, I do not consider it fit to interfere with the order at this stage. Hence rejected.

It is the say of the petitioner that at the time of admission the petitioner''s advocate has confined his challenge to the order annexure ""A"" i.e., the

order passed u/s 145 and has not pressed the abovesaid application before the Court with regard to die order passed u/s 146. He, therefore,

submitted that it was open to him to challenge the order Annexure ""B"" by filing this fresh application for quashing and setting aside the said order.

The learned advocate appearing on behalf of the respondent No. 2 raised a preliminary objection that once this Court has entertained the

application and rejected it, it was not open to the petitioner to file a second application for quashing and setting aside the said order and filing of

this fresh application is nothing but abuse of process of law and, therefore, the Court should not entertain this application.

It is an admitted fact that this Court has rejected the Miscellaneous Criminal Application filed by the petitioner on 14th June 1983 and thereafter

this application is presented before this Court on 6th September 1983 and during this time no fresh events have occurred. Therefore, the only

question which requires to be considered at present is whether this second application filed by the petitioner for quashing and setting aside the

order Annexure ""D"" is maintainable and even if it is maintainable, whether this Court should entertain it and decide it on merits once the previous

application filed by the petitioner is rejected.

The learned advocate for the petitioner submitted that there is no bar under the Criminal Procedure Code in filing second application because

these applications are at an interlocutory stage. He also relied upon the decision of the Supreme Court in the case of Babu Singh and Others Vs.

State of U.P., , wherein second application for bail was filed and the Court has observed as under:

Right at the beginning we mast mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1977. But an

order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and

different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second

consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not overturing an earlier

negation. In this view, we entertain the application and evaluate the merits pro and con.

In my view, this decision on the contrary, specifically lays down that on a later occasion if there are some developments and different

considerations arise, then the Court is entitled to entertain a second application for bail as the previous decision or direction is at an interim stage.

But that does not mean that when there are no further developments or no new events occurring, the petitioner is entitled to file as many

applications as he prefers from one Judge to another Judge. He further relied upon Section 482 of the Criminal Procedure Code which empowers

the High Court to exercise its inherent power to make such order as may be necessary to prevent the abuse of the process of any Court or

otherwise to secure the ends of justice. He, therefore, submitted that to prevent the abuse of process of Court and for securing the ends of justice

the Court is entitled to entertain even second application. For this proposition he relied upon the decision of the Supreme Court in case of

Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, , wherein the Court has held that the fact that a

similar application for quashing the proceedings on a former occasion was rejected by the High Court on the ground that questions involved were

purely questions of fact which were for the Court of fact to decide, is no bar to the quashing of the proceedings at the later stage. The following

observations of the Supreme Court would on the contrary show that because of some developments subsequently and long delay of one and a half

years the High Court proceeded to consider the subsequent 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. It was for this reason that, despite, the earlier order dated 12th December, 196K, the High Court

proceeded to consider the subsequent application of respondents Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent

jurisdiction u/s 561A.

These observations clearly show that the facts and circumstances obtaining at the time of subsequent application of the petitioners were different

from what they were at the time of earlier application and, therefore, despite the rejection of the earlier application as 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

11/2 years, the Supreme Court has approved the interference of the High Court u/s 561-A (old) Criminal Procedure Code. That does not mean

that on the same ground without there being any change in the facts and circumstances of the case the petitioner is entitled to file another

application.

The learned advocate for the respondent No. 2 relied upon In Re: Prahlad Krishna Kurne, wherein dealing with the power of the High Court

under Article 226 of the Constitution of India the Court has held that a citizen has no right to present successive applications for issue of writ of

habeas corpus to different Judges of the same High Court. The jurisdiction to issue such writ is conferred on the High Court as such and not upon

any Judge or Judges of the High Court and, therefore when a Division Bench nominated for the purpose hears an application under Article 226 it is

bearing that application as the High Court and its ultimate decision is not their decision but the decision of the High Court to which the principle of

finality of criminal judgments will apply. The Court further held that when an application u/s 491, Criminal Procedure Code (old) has been refused

a subsequent application under Article 226 will be incompetent. He also relied upon P.L. Lakhanpal Vs. Union of India (UOI) and Others, and

Ghulam Sarwar Vs. Union of India (UOI) and Others, where on the same facts the Court has held that successive habeas corpus petitions before

the High Court are not maintainable.

The learned advocate for the respondent No. 2 further relied upon Arjun Singh Vs. Mohindra Kumar and Others, . That was a case where the

Court considered the provisions of Section 11 of the CPC and Order 9 Rule 7, 13 and Order 43 Rule 1.The Court has held that the principles of

res judicata could be as much applicable to different stages of same suit as to findings on issues indifferent suits. The Court has held that the

principle of res judicata is equally applicable to the case of decisions rendered at successive stages of the same suit or proceeding. While dealing

with the orders such as stay, injunction or receiver, the Court observed as under:

Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new

facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res

judicata does not apply to the finding on which these orders are based, though if applications were made for relief on the same basis after the same

has once been disposed of the court would be justified in rejecting the same as an abuse of the process of Court.

In the same paragraph the Court has further-observed:

Even if the rule of res judicata does not apply, it would not follow that on every subsequent day on which the suit stands adjourned for further

bearing, the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated applications based on the

same facts and seeking the same reliefs might be disallowed by the Court does not however necessarily rest on the principle of res judicata.

He also referred to the decision of the Supreme Court in the case of The VIth Income Tax Officer, City Circle II-A, Bangalore Vs. K.Y.

Pillaiah and Sons, . Therein the Court has held that, even if the question was not pressed before the High Court, it must be deemed to have been

answered against him when the Court had decided the matter on other point and that question cannot be re-agitated by the party by filing a fresh

petition under Article 226 of the Constitution. He also relied upon the decision of the Bombay High Court in the case of Baburao Govindrao

Shirbhate and Others Vs. The Collector, Amravati and Others, . In the said case also the petition under Article 226 was dismissed. Thereafter a

fresh petition was filed and the Court observed in paragraph 11 as under:

Needless it is to state by entertaining the fresh petition wherein the defect of non-joinder is removed and some other additional parties have

arrayed themselves in the same cause and title would clearly lead to circumventing what was held by this Court earlier and to allow such attempt

would in our view be an abuse of the process of this Court. Moreover the ground that prevailed with the Bench that constitution of the Council was

being delayed and that parties should follow the statutory remedy provided for when the permission to add parties was refused, win have to be

annulled in this petition for entertaining the challenge and that in our view would tend to indicate nonetheless disharmony and conflict in exercise of

co-ordinate jurisdiction Question is not, what we would have done while presiding over that Bench but question is where lies the interests of

judicial harmony which must of necessity be jealously guarded and which has all its judicial roots in public policy in this regard. In substance we

would by entering the controversy in the circumstances be doing what could alone be done only by exercise of power so review for which neither

there is any ground nor any appeal to us.

He also relied on the case of Ram Narayan Gupta Vs. District Magistrate and Others, , wherein the Calcutta High Court after considering the

aforesaid Bombay High Court and Supreme Court decisions laid down the following principles which may be considered in a case where

subsequent petition for issuance of a writ in the nature of habeas corpus is filed:

(1) When an application for a writ in the nature of habeas corpus either under Article 226 of the Constitution or u/s 491 of the Code of Criminal

Procedure, 1898, is filed before a Bench of a High Court and a decision is pronounced thereon, it is a decision of the High Court itself. Successive

applications on the same grounds do not lie to the same High Court.

(2) If grounds available to the detenu or the petitioner, as the case may be, at the time the first application is made are not pressed in that

application, they cannot be made the subject-matter of a subsequent substantive application.

(3) Successive application, can, however, be made under two circumstances namely, (1) when facts or materials were in existence at the time of

the first application but were not available to the petitioner of the detenu and (ii) when events have arisen subsequent to the making of the first

application.

(4) The above principles, however, will not prevent the High Court in the exercise of its inherent power to grant relief in appropriate cases for the

ends of justice by making further orders in the same proceedings, whether on an application or otherwise.

The aforesaid decision nowhere lays down that on the same facts and same ground second application is maintainable.

Criminal Revision Application No. 253 of 1983 while rejecting one bail application the Division Bench of this Court wherein I was a party had

held as under:

The appeal was admitted on 3rd November 1982. The Division Bench admitting the appeal rejected the prayer of the appellant to be enlarged on

bail. This application was thereafter moved on 15th Jane 1983. We repeatedly asked Mr. Barot to point out the new circumstances that may have

developed after the admission of the appeal and before the filing of this application to justify this second attempt for enlarging the appellant on bail.

He was notable to point out any development having a bearing on the question of the appellant being released on bail. We, therefore, do not see

any merit in this application and reject the same.

It is an admitted fact in this case that no new facts have developed subsequent to the passing of the order in Miscellaneous Criminal

Application No. 1143 of 1983. In this view of the matter and legal position, the second application of the same grounds and same facts is not

maintainable.

In the result, the Miscellaneous Application is rejected. Rule discharged. However, considering the facts and circumstances of the case that

order under Sections 145 and 146 of the Criminal Procedure Code is passed on 13th May 1983, the learned Executive Magistrate is directed to

complete the enquiry and proceedings within two months from the date of the receipt of the writ of this Court.