High Court
Legal Reasoning
corrected 5wp172-25available, at the time of withdrawing her petition undersection 482, Cr. PC. This Court, observed that the high courtwould have the inherent power to decide any successivepetition under section 482 and that it is not denuded of thatpower by the principle of res judicata.17. That the principle of res judicata has no application in acriminal proceeding was reiterated by this Court in Devendrav. State of U.P. (2009) 7 SSC 45918. Recently, this Court in Bhisham Lal Verma v. State ofU.P13, has again held that there is no blanket rule againstfiling of successive petition under section 482, Cr. PC beforethe high court. It was also held that if such a petition is filed,it must be seen (2007) 4 SCC 70 (2009) 7 SCC 495 2023 SCCOnLine SC 1399 whether there was any change in facts orcircumstances, necessitating the filing of such petition.19. Section 482, Cr. PC, on its own terms, saves the inherentpowers of the high court to make such orders as may benecessary (i) to give effect to any order under the Cr. PC, or(ii) to prevent abuse of the process of any court, or (iii) tosecure the ends of justice. Change of law can legitimately beregarded as a vital change in circumstance clothing the highcourt with the power, competence and jurisdiction toentertain the subsequent petition notwithstanding the factthat the earlier petition was withdrawn without obtaining anyleave, subject to the satisfaction recorded by the high courtthat the order prayed for in the subsequent petition ought tobe made, inter alia, either to prevent abuse of the process ofany court or to secure the ends of justice.20. Thus, in our considered opinion, the constricted viewtaken by High Court to hold that the appellants were requiredto obtain the leave of the Judge who had dismissed the earlierpetition prior to filing the subsequent petition is clearlyuntenable and not warranted in law. It is noted that theappellants had applied a second time before the High Courtonly when the law on interpretation of Section 148, N.I. Actwas laid down somewhat differently in Jamboo Bhandari(supra) and not on any other ground. It was not a review indisguise that the appellants attempted but their endeavour6 of 8 corrected 5wp172-25was to impress the High Court to have the law, currentlygoverning the field, to be applied in their case. In terms of theauthorities referred to above, the subsequent petition waswell-nigh maintainable.” 11.Reverting to the present case, it shows that, in anearlier round of litigation the petitioner had filed Cri. W. P. No.1207 of 2024 and challenged the order dated 18.06.2024 passedby the learned Additional Sessions Judge, Aurangabad belowExh.4 in Criminal Appeal No. 20 of 2024. However, on21.10.2024, after hearing quite some time, when this courtshowed disinclination, on instructions the learned counsel for thepetitioners withdrew the said petition without reserving any rightto file subsequent Petition. Further, the petitioners again filedCriminal Writ Petition No. 15 of 2025 but again it was withdrawnon 24.01.2025 with liberty to file a fresh because wrong petitionwas uploaded and filed online. It is submitted that, once the Courtshowed disinclination to entertain the petition and the petitionerswithdraw the petition without liberty to file a fresh petition in thatevent, a subsequent petition challenging the same order on samecause of action which was subject of the former suit is notmaintainable. Therefore, considering the law down in the citedcase, principle of res judicata provided under section 11 of theCr.P.C. is applicable to the present case because the petitioner has7 of 8 corrected 5wp172-25not invoked Sec. 482 of Cri. P. C. Therefore, the Criminal WritPetition is dismissed.12. In so far as Criminal Writ Petition No. 15 of 2025 isconcerned, the petitioner himself stated that it was wronglyuploaded and was withdrawn, therefore, liberty to file afresh wasgranted. It is submitted that, while disposing off the Criminal WritPetition No. 15 of 2025 this Court had not gone merit of thematter. Moreover, the petitioner has not disclosed the fact of filingCri. W. P. 1207/2024) and its withdrawal.( Y. G. KHOBRAGADE, J. )JPChavan8 of 8
Arguments
corrected 5wp172-25IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD5 CRIMINAL WRIT PETITION NO. 172 OF 20251.Abbee Consumable And Peripherals Shoppee LtdA company registered under the Companies Act,Having its office at Shop No.1, Ground Floor,Kumar Garima, Tadiwala Road, Pune2. Badrinarayan s/o Bansilal SoamaniDirector and Authorized Signatory,Age 65 years, Occu: Business,Shop No.1, Ground Floor,Kumar Garima, Tadiwala Road, Pune …. PETITIONERSVERSUSVirendra @ Virendrasingh Uttamsingh PawarAge 47 years, Occu: Business,R/o 27, Sueksha Vyankatesh Nagar,Jalna Road, Aurangabad .… RESPONDENT...Mr. Jaiswal Nikhil Deepak, Advocate for the PetitionerCORAM :Y. G. KHOBRAGADE, J. Dated:24th February, 2025PER COURT :-1. Heard Mr. Jaiswal, the learned counsel for thePetitioners at length.2. By the present Petition under Articles 226 and 227 of1 of 8 corrected 5wp172-25the Constitution of India, the Petitioners take exception to theorder dated 18.06.2024 passed by the learned Additional SessionsJudge, Aurangabad below Exh. 4 in Criminal Appeal No. 20 of2024, thereby while suspending the sentence, the presentpetitioners/accused were directed to deposit 20% of thecompensation under section 138 of the Negotiable Instruments Actwithin a period of one month from the date of order.3.In the present Petition, the petitioners have put forth prayerclause (B) as under:“(B) Impugned order and judgment dated 18.06.2024below Exh. 4 in Criminal Appeal No.20 of 2024 to theextent of depositing 20% of compensation amount withinone month from the date of order passed by the learnedAdditional Sessions Judge may kindly be quashed and setaside.”4. Needless to say that, in an earlier round of litigation,the Petitioners/accused had filed Criminal Writ Petition No. 1207of 2024 on 01.07.2024 and had put forth prayer clause (B) asunder:“(B) Impugned judgment and order dated 18.06.2024below Exh. 4 in Criminal Appeal No.20 of 2024 to the2 of 8 corrected 5wp172-25extent of depositing 20% of compensation amount withinone month from the date of order passed by the learnedAdditional Sessions Judge may kindly be quashed and setaside.”5. In Criminal Writ Petition No.1207 of 2024, on21.10.2024, this Court passed the following order:“On instructions, the learned counsel appearing for thePetitioner seeks leave to withdraw the petition.Accordingly, the petition is dismissed as withdrawn.”6. Subsequently, the Petitioners have instituted CriminalWrit Petition No. 15 of 2025 on 10.12.2024 and put forth prayerclause (B) as under:“(B) Impugned judgment and order dated 18.06.2024below Exh. 4 in Criminal Appeal No.20 of 2024 to theextent of depositing 20% of compensation amount withinone month from the date of order passed by the learnedAdditional Sessions Judge may kindly be quashed andset aside.”7. In Criminal Writ Petition No. 15 of 2025, on24.01.2025, this court passed the following order: “1. The learned counsel for the Petitioner seeks leave towithdraw the Petition with liberty to file a fresh on theground that wrong petition has been filed online.3 of 8 corrected 5wp172-252. Accordingly, the Writ Petition is disposed of with liberty tofile fresh Petition, if he so desires.”8.When this Court raised a question that, whether thesubsequent petition is maintainable on the same cause of actionwhen the former Criminal Writ Petition No. 1207 of 2024 wasdisposed off by this Court as withdrawn on instructions in whichorder dated 18.06.2024 was challenged ? 9. The learned counsel appearing for the petitionerssubmits that, if the petitioners withdraw the first petitionchallenging the same order and filed a subsequent petitionchallenging same order which was subject matter of the formerpetition in that circumstances, principles of res judicata providedunder section 11 of the Criminal Procedure Code is not applicable,hence, second petition is not barred on same cause of action. 10. To buttress this submission, the learned counselappearing for the petitioner placed reliance on MuskanEnterprises and Others Vs. The state of Punjab and others,MANU/SC/1431/ 2024 [Criminal Appeal No.5491 arising out ofSLP (Cri.) No. 8072/2024], the Hon’ble Supreme Court observedas under:4 of 8 corrected 5wp172-25“14. The procedural laws governing criminal proceedings andcivil proceedings in our country are quite dissimilar, thoughthe rule of audi alteram partem and a procedure that is bothfair and reasonable to both/all parties for rendering justiceare at the heart of both the Cr. PC and the Code of CivilProcedure, 1908. The principle of res judicata, traceable inSection 11 of the CPC, does neither apply to criminalproceedings nor is there any provision in the Cr. PC akin toOrder XXIII Rule 1(3), CPC. While Section 114 of the CPCread with Order XLVII thereof empowers the civil courts toexercise the power of review, Section 362, Cr. PC bars areview. A close reading of Sections 482, Cr. PC and 115, CPCwould also reflect that the purposes sought to be achieved byexercising the high courts’ inherent powers, which therespective procedural laws save, are also at variance.Prudence and propriety in the decision-making process, thus,make it imperative for the high courts to not confuse theprocedural laws governing criminal and civil proceedings. 15. The legal position as to whether a second petition underSection 482, Cr. PC would be maintainable or not is no longerres integra. We may notice a few decisions of this Court on thepoint.16. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla 11, adecision arising out of the N.I. Act, the relevant high courthad given the party the liberty to avail any remedy in law, if5 of 8