J.M.L.Sinha, J. - (1.) THIS is an application under Section 482, Code of Criminal Procedure praying that the proceedings in a complaint case under Section 417/420, IPC filed by Jagdish Prasad Sharma against the applicant, pending in the Court of the Munsif Magistrate, Hathras (Aligarh), be quashed.
(2.) THE present application was moved by Sri Devendra Swarup, Advocate. Neither he nor any other counsel has, however, appeared to press this application. Sri H.S. Joshi, appearing on behalf of the opposite party, has raised a preliminary objection, namely, that an application under Section 482, Code of Criminal Procedure containing precisely the same facts was earlier moved by the applicant through the same counsel which was registered as Misc. Application No. 2059 of 1976 and was rejected by J.P. Chaturvedi, J. on 30th of March, 1976. learned Counsel for the opposite party has urged that, since the present application is based on the same facts as the previous application and since the previous application was considered on merits and rejected, this application cannot be entertained and should be rejected. learned Counsel also pointed out that the fact that an application on the same facts had earlier been moved and rejected by this Court was intentionally suppressed, while moving the present application, in order to induce this Court to admit the application, and the applicant has thus played a fraud on this Court. On a perusal of record it transpires that an objection as aforesaid was also raised by the opposite party in paragraph 9 of the counter -affidavit. In paragraph 12 of the counter affidavit it was further averred on behalf of the opposite party that the previous application No. 2059 of 1976 was also presented through Sri Devendra Swarup, Advocate, who filed the present application. In the rejoinder -affidavit filed on behalf of the applicant it is not controverted that an application had been filed previously and rejected by this Court. It has, however, been said in paragraph 9 of the rejoinder affidavit : ...there is no bar to file a fresh application under Section 482, Code of Criminal Procedure and more so when this Hon'ble Court has already exercised jurisdiction vested with it. It is, further submitted that if a complaint is dismissed except on the ground of acquittal, which is also open to complainant to file a fresh complaint on the same facts and allegations. It is further submitted that there have been several cases when after the dismissal of an application under Section 482, Code of Criminal Procedure another application under Section 482 Code of Criminal Procedure has been filed and which have been finally disposed and even allowed by this Hon'ble Court., It is further submitted that so far this present application under Section 482 Code of Criminal Procedure is concerned, it has been filed much subsequently with new addition of facts and circumstances of the case and hence it is fully maintainable. The fact that the previous application was presented by the same counsel, namely, Sri Devendra Swarup, has not been controverted at all in the rejoinder -affidavit. The record of Misc. Application No. 2059 of 1976 is before me and on a perusal thereof also it is crystal clear that the previous application was moved by none else than Sri Devendra Swarup.
(3.) THE first question for consideration is whether the present application could be filed in view of the fact that an application was earlier presented and rejected by this Court. The stand taken by the applicant in the rejoinder -affidavit appears to be that dismissal of a previous application is no bar to moving a fresh application under Section 482 Code of Criminal Procedure (old 561 -A of the Code of Criminal Procedure). I can accept that, if any fresh circumstance came to exist which be of a substantial nature, it may be possible for a person to make a fresh application under Section 482 Code of Criminal Procedure and it may be open to the Court to entertain that application and pass suitable orders. I have, however, no doubt in my mind that a second application cannot be moved without any change in the circumstances of the case. This principle is so well established that it cannot be expected that the learned Counsel, who moved the present application, would not have been aware of it.;