The rejection of an application under Section 91 Cr.P.C. by the trial court will operate as res judicata against filing a subsequent application on the same set of facts and grounds in the pending litigation between the same parties.

ORDER

1. This criminal misc. petition under Section 482 Cr.P.C. has been preferred assailing the order dated 08.04.2022 passed by learned Metropolitan Magistrate No.5, Jodhpur Metropolitan in Case No.1666/2018 whereby the learned trial court has dismissed the application filed under Section 91 Cr.P.C.

2. Learned counsel for the parties have fairly shown the judgment pertaining to Section 91 Cr.P.C., passed by this Court in Rakesh Gehlot Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.6048/2021) on 09.09.2022, which reads as follows:

"1. This Criminal Misc. Petition under Section 482 Cr.P.C. has been preferred claiming the following reliefs:

’It is, therefore most respectfully prayed that the application filed by the petitioner u/s.482 Cr.P.C. may be allowed and:

The order dated 22.10.2021 passed by the learned Family Court No.2, Jodhpur Metropolitan, Jodhpur in Criminal Case No.69/2019 may kindly be quashed and set aside and the application filed by the petitioner under Section 91 Cr.P.C. may kindly be allowed as prayed for.’

2. Brief facts of this case, as placed before this Court by learned counsel for the petitioner, are that a complaint was filed by the complainant/respondent No.2 (wife) before the learned Court below, under Section 125 Cr.P.C. against her husband (petitioner herein), her father-in-law and her mother-in-law, alleging therein that immediately after she got married to the present petitioner, on 31.01.2013 at Jodhpur, the petitioner-husband and her in-laws began harassing her, while making excessive demands of dowry. And that, she was subsequently thrown out of her matrimonial home, while her in-laws kept all her Stridhan with them. Out of the wedlock, the parties have a daughter.

2.1 Learned counsel further submitted that during pendency of the aforementioned complaint, the petitioner moved a Misc. Petition being S.B. Criminal Misc. Petition No.2195/2019 for quashing of the entire proceedings, whereupon, this Hon’ble Court, vide order dated 13.05.2019, had stayed the proceedings, only qua the other family members of the petitioner-husband.

2.2 Learned counsel also submitted that while the proceedings were going on before the learned court below, the petitioner moved an application under Section 91 Cr.P.C. for calling certain documents, and pay slips in relation to the employment of the complainant/respondent as a teacher in a School, namely, Emmanuel Mission School, Nayapura, while stating therein that the complainant-wife is working as a teacher in the said school, which is evident from her signature (as teacher) on the copy of a mark-sheet issued to a student of that school. Thus, as per learned counsel, the complainant-wife is not entitled to any interim or final maintenance as she is earning sufficient income to maintain herself.

2.3 Learned counsel further submitted that the respondent no. 2, wife, has concealed the said information, in the affidavits, regarding disclosure of income, filed in compliance of the judgment of the Hon’ble Apex Court in Rajnesh Vs. Neha (2021) 2 SCC 324.

2.4 Learned counsel however, submitted that the learned Court below, without duly appreciating the object and purpose of Section 91 Cr.P.C. has erred in rejecting the application of the petitioner vide the impugned order dated 22.10.2021, without taking into consideration the overall facts and circumstances of the case and the evidence placed on record before it; thus, the impugned order deserves to be quashed and set aside.

3. On the other hand, learned Public Prosecutor as well as learned counsel for the complainant opposed the aforesaid submissions made on behalf of the petitioner.

3.1 It was jointly submitted that on an earlier occasion also, the same application was preferred by the present petitioner before the learned court below, which was rejected. However, the present petitioner preferred a subsequent application under Section 91 Cr.P.C., on the same facts and grounds, which is nothing but a blatant attempt to de