Allahabad High CourtPoorva Agarwal vs State Of U.P. And Another on 27 July, 2022Bench: Mahesh Chandra Tripathi, Umesh Chandra SharmaHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\n?Court No. - 47\n \n\n \nCase :- CRIMINAL MISC. WRIT PETITION No. - 9582 of 2022\n \n\n \nPetitioner :- Poorva Agarwal\n \nRespondent :- State of U.P. and Another\n \nCounsel for Petitioner :- Syed Ahmed Faizan,Sr. Advocate,Zaheer Asghar\n \nCounsel for Respondent :- G.A.\n \n\n \nHon'ble Mahesh Chandra Tripathi,J.Hon'ble Umesh Chandra Sharma,J.1. Heard Sri S.F.A. Naqvi, learned Senior Advocate assisted by Sri Syed Ahmed Faizan, learned counsel for the petitioner and Sri G.P.Singh, learned AGA appearing for the respondents.2. This writ petition has been filed praying for the following reliefs:"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 07.01.2021 registered as Case Crime No. 0001 of 2021, underSections 409,419,420IPC, Police Station- Rani Ki Sarai, District- Azamgarh (Annexure No. 1 to this writ petition).(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest or harass the petitioner in pursuance of impugned First Information Report."3. Learned AGA has raised an objection that the petitioner had on an earlier occasion approached this Court by filing a writ petition, Criminal Misc. Writ Petition No. 3160 of 2022 (Poorva Agrawal Vs. State of UP & Another) which was dismissed vide order dated 5.4.2022, in the following terms:-"Heard learned counsel for the petitioners, learned counsel for the first informant and learned A.G.A. for the State.The writ petition seeks quashing of the FIR dated 07.01.2021 giving rise to Case Crime No. 1 of 2021, underSections 409,419and420I.P.C., Police Station- Rani-Ki-Sarai, District- Azamgarh.The allegation in the FIR is that Nitin Singh, Branch Manager and the petitioner, his wife, have caused a lost of Rs. 66.83 lacs. Temporary over drafts to the tune of Rs. 37.91 lakhs were approved and these unauthorized temporary over drafts were transferred the same day to the sundries account to the Bank of India. They also transferred the balance amount in 7 NPA accounts to the tune of Rs. 27.88 to the sundries account although their powers had already been stayed tempering overdrafts were drawn and credited to various savings bank accounts without any authorization by the account holders. Out of this amount a sum of Rs. 21.29 lakhs was recovered by the Bank. The two officials were suspended on 07.01.2020.The contention of learned counsel is that the petitioner has been implicated only because she is the wife of Nitin Singh, the erstwhile Bank Manager. Her services have been terminated but no recovery had been ordered from her. Her role in the matter is merely one of verification of the entries made by her husband. Other persons who have also verified the transfers made by Nitin Singh have not been proceeded against and they are still working which shows that the petitioner has been victimized and the bank has been following double standards.In paragraph 7 of the writ petition, it has been averred that the impugned FIR has been lodged during the currency of the departmental proceedings while in paragraph 24, it has been averred that Harendra Yadav, Amit Kumar Mishra also verified the entries made by Nitin Singh. They were also served with charge-sheets. However, Sunil Kumar Singh and Amit Kumar Mishra have been let of with warnings whereas a third person Harendra Yadav has been punished by with holding one increment. No FIR has been lodged against the aforesaid three persons.Learned AGA on the other hand has submitted that there is a specific allegation in the FIR that part of the amount which was illegally transferred by the illegal entries made by Nitin Singh, and verified by the petitioner, his wife was also transferred to her personal account. This shows that she is a direct beneficiary of the illegal actions. The FIR thus clearly discloses an offence against the petitioner. The writ petition is therefore liable to be dismissed.In this regard the submission of Shri Satish Chaturvedi, counsel for petitioner is that she was totally unaware of such transfer into her personal account.In our opinion, the issue whether the petitioner was aware or not about the illegal transfer of money into her account is to be the subject matter of investigation and the evidence that may be collected and adduced. It is not possible to rule on the issue at the moment. Besides, the same is, at best, a disputed question of fact, beyond the scope of this writ petition.However, since we agree with the submission of learned AGA that the allegations against the petitioner in the impugned FIR constitute a cognizable offence, the petition has to necessarily fail.The petition is accordingly dismissed. "4. It is submitted that the present writ petition essentially seeks similar reliefs as prayed for in the earlier writ petition which was dismissed vide the aforesaid order and in view thereof the present petition being a second writ petition for almost the same cause of action cannot be entertained.5. The principle underlying Order XXIII Rule 1of the Codeof Civil Procedure which is founded on public policy mandates that successive writ petitions cannot be entertained for the same relief. The Supreme Court in M/s Sarguja Transport Service Vs. State Transport Appellate Tribunal & Ors. held as follows:-"7. .......The principle underlying R. 1 of O. XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito beneficium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reasonthe Codeinsists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of R. 1 of O. XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained inS. 11of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yetthe Codeprovides, as stated earlier, that a second suit will not lie in sub-rule (4) of R. 1 of O. XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.8. ...........It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition........."6. Similar view was taken by the Supreme Court in Upadhyaya & Co. Vs. State of UP & Ors. and referring to the case of Sarguja Transport Service (supra) it was held as follows:-"13. The aforesaid ban for filing a fresh suit is based on public policy. This Court has made the said rule of public policy applicable to jurisdiction underArticle 226of the Constitution (Sarguja Transport Service v. STAT [(1987) 1 SCC 5 : 1987 SCC (Cri) 19]). The reasoning for adopting it in writ jurisdiction is that very often it happens, when the petitioner or his counsel finds that the court is not likely to pass an order admitting the writ petition after it is heard for some time, that a request is made by the petitioner or his counsel to permit him to withdraw it without seeking permission to institute a fresh writ petition. A court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit withdrawal of the petition. When once a writ petition filed in a High Court is withdrawn by the party concerned, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. If so, he cannot file a fresh petition for the same cause once again......"7. It is well settled that thoughthe Codedoes not apply to writ proceedings, the principles underlying therein which are founded on public policy may be extended and made applicable in writ proceedings also in the interest of administration of justice. We may refer to the judgment in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors. wherein it was held as follows:-"9. .....Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotelal Parikh v. State of Gujarat(AIR 1965 SC 1153),Babubhai Muljibhai Patel v. Nandlal Khodidas Barot(1974) 2 SCC 706 : AIR 1974 SC 2105) and Sarguja Transport Service v. STAT (1987) SCC 5 : 1987 SCC (Cri) 19 : AIR 1987 SC 88."8. Even if a party does not pray for a particular relief in the earlier writ petition, which ought to have been claimed, he/she cannot file successive writ petitions claiming the said relief, as it would be barred by the principles of constructive res judicata as enshrined in Explanation IV toSection 11and also Order II Rule 2of the Code. In this regard reference may be held to the judgment of the Supreme Court in Commissioner of Income Tax, Bombay Vs. T.P. Kumaran and M/s. D. Cawasji & Co. & Ors. Vs. State of Mysore & Anr. In M/s. D. Cawasji it was held as under:-"18. .......Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piece-meal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund........"9. We may refer to the Allahabad High Court Rules (Rules of the Court, 1952) which have been made the High Court of Judicature at Allahabad in exercise of powers conferred by theArticle 225of the Constitution of India wherein under Rule 7 of Chapter XXII there is a specific bar against filing of a second application for a direction, order or writ underArticle 226on the same set of facts.10. For ease of reference Rule 7 under Chapter XXII of the High Court Rules is being extracted below:-"7. No second application on the same facts.- Where an application has been rejected, it shall not be competent for the applicant to make a second application on the same facts."11. We may refer to the case of M/s Munna Industries Vs. State of UP & Ors. wherein it was held that in terms of the provisions of Chapter XXII Rule 7 of the High Court Rules no second application on the same facts, where an earlier application has been rejected, shall be entertained.12. In the context of the aforementioned Rule, a Full Bench of this Court in Surya Deo Mishra Vs. State of UP & Ors. held as follows:-"23. ......Rule 7 of Chapter XXII of the Allahabad High Court Rules, 1952 provides that, where an application has been rejected, it shall not be competent for the applicant to move a second application on the same fact. Even if the petitioner has withdrawn the earlier writ petition without a prayer to file a fresh writ petition, a second writ petition for the same cause of action is not maintainable. This cardinal rule of public policy to discourage multiplicity of proceedings, also incorporated in Order II, Rule 2of the Codeof Civil Procedure, the principles whereof are also applicable to writ proceedings, is too well settled to merit any elaboration. For this, it will be sufficient to refer to the judgments inB.N. Singh v. State of U.P. [1979 ALJ 1184];Dr. Ramji Dwivedi v. State of U.P. And others[1983 (9) ALR 92 (Sum) : AIR 1984 SC 1506 : 1983 UPLBEC 426.];Niranjan Rai v. District Inspector of Schools[1991 (18) ALR 398.]; Sahib Ram v. State of Haryana [JT 1995 (1) SC 24.];Harish Chandra Srivastava v. State of U.P. and others[(1967) 3 UPLBEC 1840 (DB).];Keshav Tripathi v. State of U.P. And others[1996 (28) ALR 54 (Sum) : 1997 ALJ 28 (DB).] andS.L. Bathla v. State Bank of India. [1999 (81) FLR 28 (Sum) : (1999) 1 UPLBEC 233]."13. The general principles on the basis of which the bar against entertaining successive writ petitions is founded has been succinctly explained in State of UP & Anr. Vs. Labh Chand, in the following terms:-"20. When a Judge of Single Judge Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single Judge Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non-availing of alternative remedy. Second writ petition cannot be so entertained not because the learned Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognised power. Besides, if a learned Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another learned Single Judge or a Division Bench of the same Court, it would encourage an unsuccessful writ petition to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge and another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction underArticle 226of the Constitution in that any order of any bench of such Court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for there could be no finality for an order of the Court refusing to entertain a writ petition. It is why, the rule of judicial practice and procedure that a second writ petition shall not be entertained by the High Court on the subject matter respecting which the first writ petition of the same person was dismissed by the same Court even if the order of such dismissal was in limine, be it on the ground of laches or on the ground of non-exhaustion of alternative remedy, has come to the accepted and followed as salutary rule in exercise of writ jurisdiction of Courts."14. The Supreme Court in Forward Construction Co. & Ors. Vs. Prabhat Mandal (Regd) Andheri & Ors. referring to Explanation IV to Section 11 CPC held that the order dismissing the first writ petition operates as res judicata between the parties and the person against whom the order has been passed has got no right to file a second petition on the same set of facts. We may refer to the following extract from the judgment:-"20. ......Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided..........."15. This Court is thus of the view that in view of the specific bar under Rule 7 of Chapter XXII of the High Court Rules, and also the principles underlying the provisions contained inthe Codeof Civil Procedure, referred to above, which are founded on public policy, no second writ application on the same facts where an earlier application has been rejected, may be entertained.16. In view of the aforementioned discussion the present writ petition being a second petition on the same set of facts and for similar cause of action and for almost identical reliefs as in the earlier writ petition which had been dismissed vide order dated 5.4.2022, we are not inclined to entertain the same.17. The writ petition is, accordingly, dismissed.Order Date :- 27.7.2022\n \nA.K.Srivastava