A. P. MISRA, J. ( 1 ) HEARD learned counsel for the petitioners. The petitioners seek quashing the First Information Report dated 29-4-1989 giving rise to Case Crime No. 149 of 1989, Police Station, Robertsganj, District Sonbhadra including stay of their arrest, The petitioners have further sought for quashing the provisions contained under Ss, 3 and 4 of the Prevention of Adulteration of Food, Drugs and Cosmetics (U. P. Amendment.) Act, 1974 (Act No. 47 of 1975) being ultra, vires of the Constitution of India. It is not disputed that the petitioners even earlier filed a writ petition (Writ Petition No,. 12088 of. 1989) in this Court for quashing the same aforesaid First Information Report giving rise to the same Case Crime No. 149 of 1989 and also for stay of their arrest which was dismissed by this Court vide its order 5/05/1989, Annexure-9 of the writ petition. The writ petition after hearing learned counsel for the petitioners was dismissed with a direction that in case petitioners surrender with an application for bail under Section 273, I. P. C. to the court concerned. Their hail application should be considered and disposed of on the same day. After having obtained the aforesaid relief the petitioners have now again filed this second writ petition for quashing the same First Information, Report in the same ease prime number and also for staying their arrest on additional ground of the validity of Ss. 3 and 4 of Prevention of Adulteration of Food, Drugs and Cosmetics (U. P. Amendment) Act, 1974 (U. P. Act No. 47 of 1975 ). It is on this basis learned counsel for the petitioners has urged that this new ground and relief were not taken earlier and, therefore, he has, filed the present writ petition. Sole relief of declaration of any provision as ultra vires cannot be taken by any person, it can only. be taken by a person affected by that provision. In the present case the petitioners are affected by the aforesaid First Information Report and their arrest for which they have filed the earlier writ petition and for the same relief they have filed the present writ petition on additional ground of challenging the provision of the aforesaid sections of the said Act. In the present case the petitioners are affected by the aforesaid First Information Report and their arrest for which they have filed the earlier writ petition and for the same relief they have filed the present writ petition on additional ground of challenging the provision of the aforesaid sections of the said Act. Challenging the validity of the aforesaid provisions correlates to the relief sought for by the petitioners in the earlier writ petition that is for quashing the First Information Report and staying the arrest of the petitioners. In fact, challenging the aforesaid provisions of the said sections of the aforesaid Act, though is also one of the reliefs but in effect it could be an additional ground, in our considered opinion, for challenging the same First Information Report and for the same relief. ( 2 ) IN strict sense Section 11 may not be applicable in proceedings under Article 226 of the Constitution of India but its underlying principle is and has always been made applicable to these proceedings. But for this no finality could be reached in any litigation. Principle of constructive res judicata is a point which ought to be taken if not taken could also be covered by the principle of res judicata. Unless this is done a party for the same relief may seek his redress on few grounds and being unsuccessful on few grounds could in the second innings by filing fresh petition again raise the remaining grounds for the same relief. It is for this Court to see whether subsequent proceeding arises out of the same cause of action or different. If cause of action in the same, second proceeding would not be maintainable. ( 3 ) LEARNED counsel for the petitioners has relied on a decision given by the Supreme Court in the case of Indian Oil Corporation Ltd. v. State of Bihar, (1986) 4 SCC 146 : ( AIR 1986 SC 1780 ). Reliance placed by the petitioners counsel is that since the earlier writ petition was dismissed in limine, hence the principles of either res judicata or constructive res judicata will not apply even if he has filedthe second writ petition in this court for quashing the First Information Report. Reliance placed by the petitioners counsel is that since the earlier writ petition was dismissed in limine, hence the principles of either res judicata or constructive res judicata will not apply even if he has filedthe second writ petition in this court for quashing the First Information Report. In the aforesaid Supreme Courts decision it has been held;"dismissal in limine of S. L. P. by a non- speaking order by Supreme Court will not preclude a party from seeking the same relief under Article 226 on the identical grounds," ( 4 ) THAT was a case in which the S. L. P. was filed before the Supreme Court challenging the award of the Industrial Tribunal which was dismissed in linline. Since dismissal of S. LP. no decision was given and that arose out of proceeding out of the order of Tribunal, it was held that the proceeding under Article 226 before the High Court is riot barred. The facts in the present case are different. Here earlier writ petition was filed by the very petitioners in this Court wherein the same First Information Report of the same crime number was sought to be quashed Including the stay of their arrest. ( 5 ) THE argument is that since earlier writ petition was dismissed in limine, in view of the aforesaid Supreme Courts decision, the second writ petition would not be hatred. The argument is not sustainable on two grounds. Firstly, as the said decision does not apply to the facts of this case and on the contrary, even if the earlier writ petition could be treated to have been dismissed in limine, the only remedy open to the petitioners was by preferring an appeal against the said order under Article 132, 133 or 136 of the Constitution of India. See. AIR 1967 SC 908 (915), P. L. Lakhanpal v. Union of India, AIR 1966 SC 1445 (1448), Raniesh v. Genda Lal Moti Lal Patni, AIR 1957 SC 354 , British India Corporation Ltd. v. The Industrial. Tribunal Punjab. , Secondly, we find from the earlier order that partly relief was granted to the petitioners and instead of staying their arrest their bail application was directed to be considered by the court on the same day in order that their bail application is disposed of before them so that they may not be kept in jail as is normally done. ( 6 ) IT is true that in the earlier writ petition the validity of the said provisions was not challenged which is challenged now. If argument of the learned counsel for the petitioners is accepted then if the earlier writ petition is dismissed, then on new grounds the petitioners will have right to file the second writ petition which apart from eroding the principles of constructive res judicata will also prolong the litigation between the parties. In our considered opinion, the principle enunciated by the Supreme Court as relied is not applicable. On the other hand, petitioners had the right of preferring an appeal against the said judgment to the Supreme Court as aforesaid. It is not in dispute that the petitioners are seeking the same relief on the same cause of action and on principles of constructive res judicata the petitioners would be precluded to raise it in their second writ petition. The decision in the case of Forward Construction Company v. Prabhat Mandal, AIR 1986 SC 391 paras 20 and 21 specifically refers to a case where ground which ought to have been taken into previous writ petition and was not taken will also be barred on the principles of Explanation 4 to Section II, C. P. C. ( 7 ) THE second point urged by the learned counsel for the petitioners is that after filing the first writ petition, statement of a witness has been recorded under Section 161, Cr. P. C. by the Investigating Officer through which the complicity of the petitioners in the said crime is not proved. It is not in dispute that that the matter is under investigation. It is not proper for this Court to judge at every stage of the investigation regarding complicity of an accused. It would not be appropriate for this Court to entertain the second writ petition even on their additional ground. If the submission of the petitioners counsel is correct that in view of the statement recorded under Section 161, Cr. P. C. the complicity of the petitioners is not proved, then the final report would be submitted but that could not be the ground for interference by this Court in this petition. ( 8 ) IN view of the aforesaid facts and circumstances we decline to interfere in the investigation of the case and to quash the First Information Report on both the aforesaid findings. ( 8 ) IN view of the aforesaid facts and circumstances we decline to interfere in the investigation of the case and to quash the First Information Report on both the aforesaid findings. Accordingly, this writ petition is dismissed. Petition dismissed. .