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Upendra Chamanlal Sehgal and ors. Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1986)1GLR319
AppellantUpendra Chamanlal Sehgal and ors.
RespondentState of Gujarat and anr.
Cases ReferredRam Narayan v. District Magistrate Midnpore
Excerpt:
.....years. 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 under section 561-a (old) criminal procedure code. 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..........nature of habeas corpus either under article 226 of the constitution or under section 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).....
Judgment:

M.B. Shah, J.

1. The petitioners had filed this Miscellaneous Application for quashing and setting aside the order passed by the Additional Executive Magistrate on 13-5-83 under Section 146 of the Criminal Procedure Code attaching the disputed property.

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

3. 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 under Section 482 of the Code for quashing and setting aside the order passed by the Executive Magistrate under Section 145 and under Section 146 of the Code. The order passed under Section 145 was marked as Annexure 'A' and order under Section 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.

4. 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 under Section 145 and has not pressed the abovesaid application before the Court with regard to die order passed under Section 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.

5. 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.

6. 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.

7. 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 v. Slate of U.P. : 1978CriLJ651 , 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.

8. 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, W.B. v. Mohan Singh : 1975CriLJ812 , 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 under Section 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 under Section 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.

9. The learned advocate for the respondent No. 2 relied upon In re: Prahlad Krishna : AIR1951Bom25 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 under Section 491, Criminal Procedure Code (old) has been refused a subsequent application under Article 226 will be incompetent. He also relied upon P.L. Lakhanpal v. Union of India : [1967]1SCR433 and Ghulam Sarwar v. Union of India : 1967CriLJ1204 where on the same facts the Court has held that successive habeas corpus petitions before the High Court are not maintainable.

10. The learned advocate for the respondent No. 2 further relied upon Arjun Singh v. Mahendra Kumar : [1964]5SCR946 . That was a case where the Court considered the provisions of Section 11 of the Civil Procedure Code 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.

11. He also referred to the decision of the Supreme Court in the case of VIth I.T. Officer Bangalore v. K.Y. Pillaiah and Sons : [1967]66ITR730(SC) . 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 Babarao v. Collector Amravati : AIR1976Bom110 . 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.

12. He also relied on the case of Ram Narayan v. District Magistrate Midnpore 1975 Cri. L.J. 1312, 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 under Section 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.

13. 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.

14. 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.

15. 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.


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