Calcutta High Court (Appellete Side)
Soumitra Lahiri vs The State Of West Bengal & Ors on 10 March, 2016
Author: Dipankar Datta
Bench: Dipankar Datta
1
10.03.2016
Item No.157
SB
W.P. 33540 (W) of 2014
Soumitra Lahiri
Vs.
The State of West Bengal & Ors.
Mr. Priyabrata Ghosh,
Mr. H. B. Pal.............for the petitioner.
Mr. K. J. Tewari.............for the respondents 2 and 3.
This writ petition was presented before this Court on 17.12.2014. The petitioner has questioned the charge-sheet that has been filed before the relevant magistrate under Section 173(2) of the Code of Criminal Procedure as well as the order passed by the said magistrate dated 01.11.2014 on an application under Section 239 of the Code of Criminal Procedure.
It is settled law that an order passed by a judicial forum cannot be challenged in a petition under Article 226 of the Constitution of India. Reliance may be placed on the decision of the Supreme Court reported in 2015 (5) SCC 423 (Radhey Shyam Vs Chhabi Nath) as well as the decision of this Bench reported in 2015 (1) CHN (CAL) 44 (Indrani Chakraborty Vs. State of West Bengal & Ors.).
The Constitution Bench of the Supreme Court in its decision reported in AIR 1964 SC 1419 (Thansingh Nathmal Vs. The Superintendent of Taxes, Dhubri) has laid down as follows:-
"(7)..........The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is 2 discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Report to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art.226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art.226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery to set up."
(underlying for emphasis by me) Challenge to the charge-sheet and the order dated 01.11.2014 could be made before this Court in another jurisdiction under the relevant statute as well as under Article 227 of the Constitution. In view thereof, this writ petition stands dismissed. Liberty is granted to the petitioner to avail the alternative remedy available to him, in accordance with law, if so advised. In view of the above order, CAN 1937 of 2016 is treated as on day's list and stands dismissed.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties as early as possible.
(DIPANKAR DATTA, J.)