Law: Governor-Criminal Procedure Code (V of 1898)

Section: 488

(a) Criminal Procedure Code (V of 1898)--------S. 488-Second application when barred-Principles of res judicata and autre fois acquit how far applicable.Section 488 of the Criminal Procedure Code creates a statutory right to maintenance and provides for the grant of a speedy and summary remedy to which the Code of Criminal Procedure applies, but not section 11 of the Code of Civil Procedure, that is the principle of res judicata, which is applicable to civil cases, nor is section 403 of the Criminal Procedure Code embodying the principle of autre fois acquit attracted. The principle which can stand in the way of a second application is that of `finality' which is the foundation of the rule of res judicata and operates where a question has been gone into and has been decided on merits, and bars a reconsideration in a second application of a matter finally determined, as to do so would mean rehearing a matter already decided, and may amount to exercising appellate powers, where none exist by a Court of co-ordinate jurisdiction, though the evidence has to be recorded de novo. If, however, the case of the maintenance has not been decided on merits, i.e., was dismissed in default; or if the circumstances have changed, and the second application is made on fresh grounds for a different period, there can be no bar to a second application being entertained and decided on its merits, bearing in mind of course the decision in the first application. If, for example, the wife declines to live with her husband and her application for maintenance is dismissed, but she subsequently changes her mind and offers to live with her husband, who then refuses or neglects to maintain her, and she applies to the Court under section 488 of the Criminal Procedure Code, there is no reason why the second application for maintenance in the changed circumstances for a different period should not be entertained. If a second application is made for a different period, but on precisely the same facts, as have already been adjudicated upon, the application is not barred by any specific provision of law but is not to be gone into on grounds of finality, which attaches to a matter fully and…