The principle of res judicata is not applicable in cases under Section 125 of the Code of Criminal Procedure, and a subsequent application can be filed based on changed circumstances.

1. Challenge in this revisional application is the order impugned dated 25th March, 2011 passed by learned Additional Chief Judicial Magistrate, Durgapur in misc case no. 151 of 2010 (Sipra Dey Vs. Pradip Dey) whereby and whereunder learned Magistrate has dismissed the application under Section 125 of the Code of Criminal Procedure on the ground that on earlier occasions misc case no. 145 of 1997 was dismissed by learned Magistrate and as such the misc case no. 151 of 2010 should be rejected since the petitioner had no cause of action to file such case.

2. Learned Advocate appearing on behalf of the petitioner contended that admittedly such application for maintenance was filed by the petitioner and the said application was rejected by learned trial Court. Subsequently, the petitioner has again filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance from opposite party but the said application was dismissed on the ground that the petitioner has no cause of action for filing such application under Section 125 of the Code of Criminal Procedure. It is submitted that learned Magistrate did not even discuss the decisions referred to at the time of argument of such case and did not even consider that such application under Section 125 of the Code of Criminal Procedure was filed in view of change of circumstances and therefore learned Magistrate was not at all justified in dismissing such application. Learned Advocate appearing on behalf of the opposite party no. 2 contended that learned Magistrate was perfectly justified in rejecting such application under Section 125 of the Code of Criminal Procedure since the petitioner had voluntarily left the house of opposite party no. 2 and did not return to the house of opposite party no.2. It is further submitted that the petitioner had left the house of opposite party no.2 without any lawful excuse and thereby learned Magistrate was justified in dismissing such application under Section 125 of the Code of Criminal Procedure. Learned Advocate appearing on behalf of opposite party no.2 further contended that the subsequent application under Section 125 of the Code of Criminal Procedure would come within the purview of the principle of res-judicata and accordingly learned Magistrate was justified in dismissing such application.

3. It is apparent from the factual aspects, as unfolded from the annexures of the revisional application, that admittedly the petitioner is the legally married wife of the opposite party no.2. Opposite party no.2 is an employee of railway and has sufficient means to pay maintenance to the petitioner. The petitioner undoubtedly left the house of the opposite party no.2 at the initial stage and started residing with her parents. There is no denying of the fact that the earlier application filed by the petitioner under Section 125 of the Code of Criminal Procedure was rejected and no appeal was preferred by the present petitioner. However, it is apparent from the factual scenario that thereafter the father of the petitioner has died and the petitioner is absolutely unable to maintain herself. That is why an application under Section 125 of the Code of Criminal Procedure was filed.

4. Learned Magistrate has definitely committed grave error by rejecting the application under Section 125 of the Code of Criminal Procedure without even discussing the evidences on record and without even considering the factual scenario. In a decision reported in 2002 Calcutta Weekly Notes 678 (Smt. Shipra Banerjee Vs. State of West Bengal and Ors.) this Court observed that the principle of res-judicata is not applicable in a case under Section 125 of the Code of Criminal Procedure and there is no bar for filing second application. It has further been observed by this Court that the petitioner cannot be denied access to the Court simply on the ground that her earlier prayer was turned down and such order on the part of learned Magistrate pe