Shri Subhash Vithoba Naik and Others vs Mrs. Bharati Naik

F.M. Reis, J.—Heard Shri Deepak Gaonkar, learned Counsel appearing for the Petitioners, Ms. Asha Dessai, learned Counsel appearing for the Respondent no.1 and Shri C. A. Ferreira, learned Public Prosecutor appearing for the Respondent no.2. The above Petition challenges the Judgment dated 17.11.2011, passed by the learned Addl. Sessions Judge, Mapusa, in Criminal Appeal no. 155/2010, whereby, the learned Judge, inter alia, allowed the Appeal preferred by the Respondents and restored the application filed by the Respondent no.1 and directed the learned Magistrate to decide the said application on merits in terms of law.

Shri Gaonkar, learned Counsel appearing for the Petitioners, has essentially challenged the impugned Judgment on the ground that the Respondent no.1 had already filed a similar application in the year 2008 which came to be rejected and, as such, the second application filed by the Respondent no.1 was not maintainable in law and barred by the principles of res-judicata. Learned Counsel has further pointed out that the grounds on which the second application has been filed are similar to the ones which the Respondents had filed on the earlier occasion claiming for similar reliefs. The learned Counsel further pointed out that considering that the earlier application filed by the Respondents came to be rejected, the question of entertaining another application on the same ground, does not arise at all. Learned Counsel has taken me through the impugned Judgment and pointed out that the learned Addl. Sessions Judge has not at all considered such submissions advanced before him and, consequently, the impugned Judgment deserves to be quashed and set aside.

On the other hand, Ms. Asha Dessai, learned Counsel appearing for the Respondent no.1, has supported the impugned Judgment. Learned Counsel further pointed out that the facts averred in the present application are with regard to incidents which took place subsequent to the earlier Order and, consequently, the contention of the learned Counsel appearing for the Petitioner to the effect that the application is not maintainable has no substance. Learned Counsel further pointed out that in any event, the learned Judge has only directed that the application filed by the Respondents is to be considered on merits in accordance with law and any such contention with regard to the maintainability of such application, can always be re-assessed by the learned Magistrate after evidence have been adduced by both the parties. As such, learned Counsel appearing for the Respondents submits that there is no prejudice to the Petitioners and, consequently, no interference is called for in the impugned Judgment.

Having heard the learned Counsel and on perusal of the impugned Judgment and the records of the proceedings, I find that the learned Addl. Sessions Judge whilst passing the impugned Judgment, has noted the fact that the Respondent no.1 has stated about two incidents which took place subsequent to the Order passed in the year 2008. Whether there is substance in such allegations are matters which would have to be ascertained after evidence is recorded in the proceedings. The contention of the learned Counsel appearing for the Petitioners to the effect that the learned Addl. Sessions Judge has not considered the said aspect, cannot be accepted. In any event, taking into consideration the submissions of the learned Counsel appearing for the Respondent no.1, the question of maintainability of the application can always be considered by the learned Magistrate at the time of disposing the application filed by the Respondent on merits after the evidence is recorded. Subject to above, I find no case is made for any interference in the impugned Judgment. Hence, Petition stands dismissed.