Andhra Pradesh High Court - Amravati

Vegesna Saraswathi, W.G.Dist. vs The State, P.P., Guntur Ano on 27 June, 2022

Bench: C.Praveen Kumar

     THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR

          CRIMINAL PETITION No.6468 of 2014

ORDER:-

     The present application is filed by the petitioner/A.5,

seeking quashing of investigation in Crime No.55 of 2013 of

Sarpavaram Police Station, Kakinada, which was registered

against her and others, for the offences under Section 420,

406, 471 and 134 of India Penal Code, 1860 [for short,

"IPC"].


2.   The averments in the complaint filed against the

accused    are   that   A.1    is   the   counsel    for   the

2nd respondent/complainant and her sister in their civil suits

at Kakinada, while the other accused are the henchmen of

A.1, having no respect towards law and order. It is said that

the dispute in the present case relates to land admeasuring

Ac.3.12 cents in S.No.105/2, Ramanayyapeta. While the

suits filed by some third parties are pending, A.1 hatched a

plan to grab the said site and made belief with his words that

he would not give any General Power, but he will engage the

persons and sell the above property. Thus, A.1 to A.4 in

collision with A.5 and others got fabricated the documents.

Believing the words of A.1 to A.4, the sister of the

complainant executed a General Power of Attorney in favour

of A.2 to A.4 as her agents, on 11.08.2010 at S.R.O,

CPK, J Crl.P.No.6468 of 2014

Peddapuram. The complainant also executed a General

Power of Attorney in favour of A.2 to A.4 on 24.08.2010 at

S.R.O, Peddapuram. The entire transaction was done in the

presence of A.1. Then, A.1 to A.4 promised for sale

consideration, but by suppressing the real facts and in

collision with A.5 to A.12 fabricated the documents and did

not handover the sale consideration to the complainant and

her sister as promised by A.1 to A.4 and caused wrongful loss

to a tune of Rs.3,00,00,000/- [Three Crores only] to the

complainant and her sister. The averments in the complaint

also show that A.1 to A.4 in collision with other accused

fabricated the documents and created sale deeds in between

A.1 to A.4 and A.5 and A.6.

3. A counter came to be filed by the 2nd respondent,

denying the averments made in the petition. She stated that

after registration of a crime against the petitioner, the

petitioner/A.5 filed Crl.P.No.11133 of 2013 for quashing of

investigation in Crime No.55 of 2013. Vide order dated

11.12.2013, the same was dismissed as withdrawn.

Thereafter, W.P.No.33745 of 2013 came to be filed by the

petitioner/A.5, which was also disposed of vide order dated

02.12.2013, wherein, this Court while dismissing the said

Writ Petition, filed to declare the action of respondents 1 to 8

CPK, J Crl.P.No.6468 of 2014

harassing the petitioner as illegal and arbitrary, observed as

under:-

"Suppression of relevant and material facts would disentitle the petitioner from being granted any relief. The jurisdiction which of this Court exercises under Article 226 of the Constitution of India is discretionary and save larger public interest this Court would not intervene. As the petitioner has suppressed material facts, I see no reason to grant the relief sought for in this writ petition.

This Writ petition is, accordingly, dismissed. The miscellaneous petitions pending, if any, shall also stand dismissed. There shall be no order as to costs."

4. Learned counsel for the petitioner would submit that

though the petitioner has filed earlier application, seeking

similar relief, but the same was withdrawn [Crl.P.No.11133 of

2013] without seeking permission to file fresh petition.

Thereafter, the present application was filed under Section

482 of Cr.P.C. for quashing of the investigation. An objection

is raised by learned counsel appearing for the 2nd respondent

that when once an application is withdrawn and in the

absence of any permission being granted for filing of fresh

application, the Court erred in entertaining the second

application, filed by the petitioner. He relied upon a

judgment of the Apex Court in Sarguja Transport Service

vs. State Transport Appellate Tribunal, Gwalior and

others1 in support of his case.

1 AIR 1987 SC 88

CPK, J Crl.P.No.6468 of 2014

5. The same is opposed by learned counsel for the

petitioner, stating that when earlier application was not

decided on merits, there is no bar for filing a fresh

application. The fact that petition under Section 482 Cr.P.C.

filed by the petitioner was withdrawn without seeking

permission of the Court to file a fresh application, is not in

dispute. That being so, whether the petitioner was right in

filing a second application?. In order to appreciate the same,

it would be appropriate to extract the relevant portion in Para

9 of the judgment of the Apex Court, which referred to above,

is as under:-

"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case is of no assistance. But, we are of the view that the principle underlying R.1 of O.XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench- hunting tactics. In any event there is no justifiable reason in such a case to permit a petition to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case,

CPK, J Crl.P.No.6468 of 2014

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 fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open."

6. From the judgment of the Hon'ble apex Court, it is

clear that when a Writ Petition under Article 226 of the

Constitution of India is withdrawn without obtaining

permission from the Court, a second writ petition filed under

Article 226 of the Constitution of India would not lie subject

to take exception as stated therein [Writ of Habeas Corpus]

in view of Order XXIII Rule 1 C.P.C. Though the present

application is one under Section 482 Cr.P.C., but the ratio

laid down in the said judgment apply to the case on hand.

As the principle underlying Order XXIII Rule 1 C.P.C was

extended to Writ Petitions also in the interest of

administration of justice, the same, in my view, can be