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1995 Supreme(Pat) 394
PATNA HIGH COURT
S.K.Chattopadhyaya, J.
Rash Bihari Singh
Versus
Raj Mangal Singh
Criminal Miscellaneous No. 741 of 1988 ;
Decided On : JULY 25, 1995
A second quashing application under Section 482 of the Code of Criminal Procedure is not maintainable when the earlier application was withdrawn without permission to file a fresh application.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 482 - QUASHING OF ORDER - MAINTAINABILITY - SECOND APPLICATION - CONSTRUCTIVE RES-JUDICATA - PUBLIC POLICY - WITHDRAWAL OF EARLIER APPLICATION WITHOUT PERMISSION TO FILE FRESH APPLICATION - BAR TO SUBSEQUENT APPLICATION.
Fact of the Case:
Petitioner filed a quashing application under Section 482 of the Code of Criminal Procedure to challenge an order passed by the First Additional Sessions Judge, Dhanbad, which set aside an order of the Executive Magistrate declaring the petitioner's possession over the disputed land.
Finding of the Court:
The court held that the second quashing application was not maintainable as it was barred by the principles of constructive res judicata and public policy. The court noted that the petitioner had earlier filed a quashing application under Section 482 of the Code, which was dismissed as withdrawn. The court also rejected the petitioner's request to convert the quashing application into a revision application, as it was hopelessly barred by limitation.
Issues: Whether a second quashing application under Section 482 of the Code of Criminal Procedure is maintainable when the earlier application was withdrawn without permission to file a fresh application.
Ratio Decidendi: The court relied on the Supreme Court decision in Surguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors., which held that a fresh writ petition is not maintainable before a High Court in respect of the same subject matter if the earlier writ petition was withdrawn without permission to file a fresh petition. The court also noted that the withdrawal of a writ petition without permission to file a fresh petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution, but the remedy under Article 226 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ.
Final Decision: The court dismissed the quashing application as not maintainable, with costs assessed at Rs. 500.00.
S.K.Chattopadhyaya, J.
1. This application under Sec. 482 of the Code of Criminal Procedure has been filed for quashing the order dated 7.2.88 passed in Criminal Revision No. 28/88.
2. It appears that the Executive Magistrate by his order dated 28.1.88 declared the possession of the petitioner over the disputed land; The opposite parties moved in revision and the First Additional Sessions Judge, Dhanbad, by the impugned order, set aside the order of the Executive Magistrate declaring the possession of opposite party Nos. 1, 2 and 3 over the disputed land.
3. A preliminary objection has been raised by Mr. M.P. Sinha, learned Counsel appearing on behalf of the opposite parties about the maintainability of this application. Firstly, he submits that the impugned order being revisable under the Code of Criminal Procedure, the petitioner ought not to have filed this quashing application. Secondly, it is contended that against the same order the petitioner earlier moved this Court under Sec. 482 of the Code in Cr. Misc. No. 557/88 (R) which was dismissed as withdrawn on 8.3.88. he submits that the present application should be dismissed on that score alone.
4. Mr. N.K.P. Sinha, learned Counsel appearing on behalf of the petitioner, however, contends that as because the same Single Judge who had earlier dismissed the petition filed by the petitioner, has admitted this application, this application should be deemed to be maintainable. he further contends that in view of the decision reported in A.I.R. 1975 Supreme Court, 1002, a second quashing application under Sec. 482 of the Code is maintainable. It is also contended by him that if ultimately it is held that an application under Section 482 of the code is not maintainable for quashing the impugned order, the petitioner may be permitted to convert this application into a revision application.
5. First paragraph of Cr. Misc. No. 557/88 (R) reads as follows:
That this application is directed against the order dated 17.2.88 passed by Sri Shiveshwar Narain, 1st Addl. Session Judge. Dhanbad in Cr. Revision No. 28/88 reversing the order dated 28.1.88 passed by Sri N.K. Sinha, learned Executive Magistrate, Dhanbad in M.P. case No. 785/85 whereby and where under he has been pleased to set aside the order dated 28.1.88 passed by the said learned Executive Magistrate and has further been pleased to declare possession of the opposite parties No. 1, 2 and 3 over the disputed land.
The prayer portion of the said Cr. Misc. No. 557/88 (R) reads as follows:
It is, therefore, prayed that your lordships may be pleased to admit this application, call for the record of Cr., Revision No. 28/88 from the court of 1st Addl. Sessions Judges, Dhanbad along with the records of M.P. case No. 785/85 from the court of Sri N.K. Sinha, Executive Magistrate, Dhanbad and on hearing the parties, be pleased to allow this application, set aside, or quash the order dated 17.2.88 passed by Sri Shiveshwar Narain, 1st Addl. Sessions Judge, Dhanbad in Cr. Revision No. 28/88 and restore the order dated 28.1.88 passed by Sri N. K. Sinha, Executive Magistrate Dhanbad in M.P. case No. 785/85, and Pending hearing this application be pleased to direct that status quo as on the date of the order of the learned Revisional court shall be maintained and to pass such further order/(s) as may be deemed fit and proper.
6. The first paragraph of the present quashing application reads as under:
That this application is directed against the order dated 17.2.88 passed by Sri Shiveshwar Narain, 1st. Addl. Sessions Judge, Dhanbad in Cr. Revision No. 28/88, reversing the order dated 28.1.88 passed by Sri N.K. Sinha. Executive Magistrate Dhanbad in M.P. case No. 785/85 whereby and where under he has been pleased to set aside the order dated 28.1.88 passed by the said learned Executive Magistrate and has further been pleased to declare possession of the opposite party Nos. 1, 2 and 3 over the disputed land.
Similarly, the prayer portion o
