Pawan Kumar Gupta v. State Of Bihar — 1988 DIGILAW 105 (PAT)

Judgment 1. This application under Sec.482 of the Code of criminal Procedure (hereinafter referred to as the code) has been filed by pawan Kumar Gupta for quashing an order of taking cognizance dated 30-4-1981 and the entire criminal proceeding relating thereto pending in the Court of the sub-Divisional Judicial Magistrate, Ranchi, mainly on the ground that the complaint petition does not make out any offence punishable under the law, much less under Sec.7 of the Essential Commodities Act. 2. On the other hand, a preliminary objection has been taken by the learned counsel appearing for the State to the maintainability to this application on the ground that a similar application on the same ground and for the same relief was riled by this petitioner (Pawan Kumar Gupta) under Sec.482 of the code which was numbered as Cr. Misc. No.1142/82 (R ). In that application also the prayer of the petitioner was for quashing the very same criminal proceeding and order taking cognizance. It is the undisputed position that the earlier application was dispossed of as withdrawn. It was contended by the learned counsel appearing for the State that a fresh application under Sec.482 of the Code of same relief and substantially on the same ground cannot be entertained. In support of this submission reliance was placed by the learned counsel on the decision of the Supreme Court in the case of Sarguja Transport Service V/s. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88 . 3. For appreciating the point taken by the learned Counsel for the State it would be useful to refer to the prayer portion of the present application as also of the earlier application [cr. Misc. No.1142/82 (R]. In the present application the relevant portion of the prayer of the petitioner is as follows : - "your Lordship may be graciously pleased to admit this application, call for the records from the Court below and after hearing the parties be further pleased to quash the order of taking cognizance dated 30-4-1981 and allow this application, by further quashing the entire proceeding pending in Court below against the petitioner. " The relevant portion of the prayer of the petitioner in his earlier application [cr. Misc. " The relevant portion of the prayer of the petitioner in his earlier application [cr. Misc. No.1142/83 (R)] is as follows : - "under this circumstances, it is therefore, prayed that your Lordship may be pleased to admit this application, call for the records of the case and after hearing the parties set aside the impugned order dated 30-4-1981 by which cognizance has been taken by Shri M. Q. Hoda, the Chief Judicial Magistrate, Ranchi and quash the entire criminal proceeding against the petitioner pending before Shri Krishna murari, Sub-Divisional Magistrate Ranchi in Case No. C-11 26/81. " 4. Thus it is evident that an identical prayer for quashing the entire criminal proceeding and the cognizance taken by the Court against the petitioner by order dated 30-4-1981 has made in both the applications. It is the admitted position that the earlier application of the petitioner was permitted to be withdrawn by the court by order dated 6-7-1983 and no liberty was given to the petitioner to file a fresh application for the same cause of action and relief. The submission of the learned counsel for the State is that since no liberty was given to the petitioner while allowing withdrawal by the said order, a second application for the same relief cannot be entertained. In support of this submission reliance was placed by the learned counsel on the decis ion of the Supremo Court in the case of Sarguja Transport Service V/s. S. T. A. Tribunal Gwalior (supra ). The learned counsel has specifically drawn attention to the following observation made by the Court in this decision : "in the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundmental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open. " 5. We, however, leave this question open. " 5. It was, however, contended by the learned Counsel for the petitioner that this observation was made in connection with a writ application and same could not be extended to an application under Sec.482 of the Code. No doubt, this observation has been made in connection with a writ application but the reason given for this observation is the rule of public policy which would be applicable to all the applications made either under writ jurisdiction or under section 482 of the Code. The Supreme Court has further observed that this rule will also discourage the litigants from Bench hunting tactics. The only exception to this rule, as pointed out by the Supreme Court would be habeas corpus applications and those seeking to enforce fundamental rights guaranteed under Article 21 of the Constitution. By analogy this exception may be extended to Bail application also but not to an application under Sec.482 of the code. Public policy requires that a person should not be allowed to re-agitate the same matter after withdrawing his earlier application on the same subject and for the same relief. It is common knowledge that generally withdrawal is sought for only, when the court is not inclined to entertain the application and so only to avoid an order of dismissal being passed, a prayer is made for withdrawal of the application. So, when the court had declined to entertain the earlier application, how it can entertain the subsequent application on the same ground and for the same relief. Indeed, the forum of jurisdiction is immaterial in such a situation and there cannot be any difference in the public policy in respect of an application under Sec.482 of the Code and that tiled within the writ jurisdiction of the court. Withdrawal evidently indicates that remedy sought for by the petitioner has been refused and as such he cannot be allowed to re-open the same through a subsequent application. Otherwise it would encourage Bench hunting. If the same thing is allowed to be re-opened by subsequent applications i am afraid, there would be no finality of any order and the petitioner may go on filing an application after another until his purpose is achieved. This will evidently result in mockery of the Judicial system of the country. Otherwise it would encourage Bench hunting. If the same thing is allowed to be re-opened by subsequent applications i am afraid, there would be no finality of any order and the petitioner may go on filing an application after another until his purpose is achieved. This will evidently result in mockery of the Judicial system of the country. For these reasons a second application on the same ground and for the same or similar relief after the withdrawal of the earlier application should not be entertained unless a liberty has been given to file another application by the Court at the time of allowing withdrawal. 6. Learned counsel for the petitioner, however, placed reliance on a decision of the Supreme Court in the case of Supdt. and Remembrancer of West Bengal V/s. Mohan Singh, AIR 1975 SC 1002 . The relevant portion of this decision is as follows : "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, 2 and consider whether on the facts and circumstances then ootaining the continuance of the proceeding against the respondents consituted 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 oi 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 one and half years. It was for this reason that, despite the earlier order, dated 12th december, 1968, the High Court proceeded to consider the subsequent application of respondent Nos.1, 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under section 561-A. This the High Court was perfectly entitled to do and we do not see any jurisdictionel infirmity in the order of the High Court. " 7. No doubt, the Supreme Court had held in this case that a 2nd application under Sec.561-A of the Old Code (now 482 of the New Code) can be entertained but the court made it clear that the second application can be entertained only if there has been a change in the circumstances and the new circumstances were not there when the first application was filed and was withdrawn or dismissed. What the Supreme Court said was that the High Court was entitled to entertain the second application for determining whether it would be necessary to quash the proceeding in the changed circumstances for securing the ends of justice. In that case the proceeding was quashed on the ground that the prosecute had failed to make any progress even after a long lapse of time. So, it was obviously a fresh ground for quashing the proceeding on the ground of failure of the prosecution to make any progress in the case which resulted in abuse of the process of the court, which was not taken at all in the first application, So this decision cannot be of much help to the petitioner in the present case inasmuch as the main ground on which the relief has been sought for in the present case is the same which was taken to the earlier application. In such circumstance, this second application cannot be entertained on that ground which is that complaint petition does not disclose any office. His application can, however, be entertained on the second ground which he has mentioned in paragraph no.16 of the application as this ground was not taken in the earlier application. 8. Paragraph No.16 of the application is as follows : "that the petitioner had filed Cr. Misc. No.1142/82 (R) and the said application was permitted to be withdrawn on 6-7-1982. His application can, however, be entertained on the second ground which he has mentioned in paragraph no.16 of the application as this ground was not taken in the earlier application. 8. Paragraph No.16 of the application is as follows : "that the petitioner had filed Cr. Misc. No.1142/82 (R) and the said application was permitted to be withdrawn on 6-7-1982. After the withdrawal of the said application there has been practically no progress for one and half years and the petitioners is being unnecessarily harassed and humiliated in the aforesaid proceeding. Certified copy of the order sheet of Case No. C (ii) 26/81 including the order taking cognizance dated 30-4-1981 is being filed herewith. " 9. The ground of delay in disposal of the trial has, however, no substance in the present case as the prosecution alone cannot be held responsible for the delay. The present application was filed on 21-12-1983 and further proceeding in the court below was stayed by order, dated 4-1-1984 and since then no progress could be made in the trial because of the stay order. Before the passing of the stay order, some progress was made and three witnesses were examined on behalf of the prosecution before the charge. At that very stage the present application was filed in this court and stay order was obtained. Had the petitioner co-operated in the trial, I am sure, the trial must have been concluded long before. So, the petitioner is mainly responsible for this inordinate delay in the conclusion of the trial. Taking into consideration the number of the pendency of the criminal trials in the State and the paucity of Judicial Officers to deal with them, it cannot be said that there has been abnormal delay in the trial of the present case. So, the ground of delay taken up by the petitioner cannot by itself be sufficient for quashing the entire proceeding. Indeed, the quashing of the proceeding in these circumstance would lead to miscarriage of justice. 10. For the reasons given above, this application is dismissed. Since the case before trial court has become very old, the trial court should see that it is concluded within six months from the date of the receipt of the record from this court. Indeed, the quashing of the proceeding in these circumstance would lead to miscarriage of justice. 10. For the reasons given above, this application is dismissed. Since the case before trial court has become very old, the trial court should see that it is concluded within six months from the date of the receipt of the record from this court. It is also made clear that the petitioner would be at liberty to make his submissions before the trial court at the time of framing of the charge and, if such a submission is made, the trial court shall pass an appropriate order. Let the lower court records be sent down to the court concerned without any delay. Application dismissed.