1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 448/2009 Smt. Vimla w/o Deopriya Madhura vs. State of Maharashtra, through Inspector, MSEDDCL P.S., Gaddigodam, Nagpur and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & P.D.Kode,JJ DATE OF RESERVING : 22.02.2010 DATE OF PRONOUNCEMENT : 03.03.2010 Heard Mr. N.K.Dwivedi, learned counsel for the petitioner, Mr. K.H.Deshpande, Senior Advocate with Mr. R.E. Moharir, Advocate for the respondents 2 to 4 and Mr. Y.B.Mandpe, the learned A.P.P. for respondents 1 and 5. 2. By this petition the petitioner challenges First Information Report No. 330/07 as well as the proceedings in Special Case No. 453/07 pending against her before the Special Judge at Nagpur. The petitioner has also challenged the Notification dated 26.9.2006 and Circular dated 7.7.2005 issued by the respondents 2` 5 and 2 respectively being illegal and without jurisdiction 3. Mr. K.H.Deshpande, the learned senior counsel appearing for respondents 2 to 4 at the outset submitted that the petitioner had earlier filed Criminal Application NO. 1599/07 challenging the First Information Report filed against her and the same along with Criminal Application No. 867/07 was dismissed by the learned Single Judge by the Judgment and order dated 7.8.2007 and, therefore, the present petition filed is not maintainable. According to Mr. Deshpande, the petitioner ought to have challenged both these notification dated 26.09.2006 and circular dated 7.7.2005 while challenging the first information report and the petitioner having not done so is not entitled to file the present petition challenging the very same first information report and the criminal proceedings on the grounds which were available to the petitioner. 4. Mr. Dwivedi, the learned counsel for the petitioner 3` submitted that in the earlier application filed by the petitioner challenging the FIR filed against her the Notification dated 26.9.2006 and Circular dated 7.7.2005 were not challenged and, therefore, the present petition at the instance of the petitioner is maintainable. He further submitted that the principle of res judicata is not applicable in criminal proceedings. In support of his submission Mr. Dwivedi relied upon the following Judgments; i) Manipur Administration, Manipur vs. Thokchom Bira Singh, AIR 1965 Supreme Court, 87); ii) Lallubhai Jogibhai Patel vs. Union of India and others; (AIR 1981 Sup)reme Court, 728. 5. We have considered the rival submissions and perused the record. There is no dispute that the petitioner filed Criminal application No. 1599/07 challenging the first information report filed against her 4` which was dismissed by the learned Single Judge by Judgment and order dated 7.8.2007. It is pertinent to note that the notification and the circular which have been challenged in the present petition were issued prior to the Judgment in the Criminal Application No. 1599/2007 and as such the challenge to the notification and circular was very much available to the petitioner when he challenged the first information report filed against her before the learned Single Judge. 6. In our considered opinion, the petitioner ought to have challenged the notification and circular while challenging the first information report and the petitioner having not challenged initiation of the criminal proceedings and notification and circular earlier in our considered opinion, this is not a fit case in which we should exercise extra ordinary jurisdiction under Article 226 of the Constitution of India. The conduct of the petitioner in not challenging the notification and circular earlier clearly discloses the intention on the part of the petitioner is to stall the criminal proceedings 5` initiated against her by one way or the other. The petitioner can not be permitted to file different proceedings to challenge the criminal proceedings initiated against her. Insofar as the Judgments relied upon by Mr. Dwivedi are concerned the same do not advance the case of the petitioner. In the case of Manipur Administration (supra) the question was regarding issue of estoppel in a criminal trial and whether second trial is barred on the principles under Article 20(2) of the Constitution of India. The facts in the present case are entirely different. In the case of Lallubhai Jogibhai (supra) the Apex Court held that for subsequent petition seeking the writ of hebeas corpus can be filed on fresh grounds. The said ratio obviously is not applicable in the present case. 7. Having regard to the settled principles laid down by the Apex Court in the matter of filing of writ petition, we are of the considered opinion, that the conduct of the petitioner clearly dis-entitles her from filing the present petition. The petitioner ought to have 6` challenged the notification and the circular when she challenged the first information report by filing application before the learned Single Judge. Therefore, we are not inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India at the instance of the petitioner. 8. Writ petition is accordingly dismissed. Needles to mention that all the contentions of the petitioner are kept open. Ad interim relief dated 19.3.2009 granted by the learned Single Judge stands vacated. The parties shall appear before the Special Judge on 23.3.2010 at 11 a.m.. Since the case filed pertains to the year 2007 the learned Judge shall dispose of the same expeditiously and in any case within a period of one year from 23rd March, 2010. JUDGE JUDGE patle 7` 9. At this stage Mr. Dwivedi, learned counsel for the petitioner seeks certificate in terms of Article 134 of the Constitution of India on the ground that the interpretation of the Circular and Notification is involved in the present petition. 10. Mr. Mandpe, learned A.P.P. appearing for respondent no.1 and Mr. Moharir, learned counsel appearing for respondents 2 to 4 state that they have no objection if certificate is granted. 11. It is pertinent to note that we have refused to entertain the petition on the ground that the petitioner had earlier filed writ petition challenging the very same FIR and mainly on this ground we have refused to exercise our extra ordinary jurisdiction under Article 226 of the Constitution of India. As such there is no question of granting certificate for approaching the Apex Court in terms of Article 134 of the Constitution of 8` India. We are really surprised that the learned counsel for the respondents and learned A.P.P. have given no objection. The no objection given by the learned counsel for the respondents is not binding on this Court. No case is made out by the petitioner for grant of certificate under Article 134 of the Constitution of India. Therefore, the request of the petitioner is rejected. JUDGE JUDGE patle