Bombay High Court
Sapna Raju Gaikwad And Anr vs State Of Maharashtra And Anr on 21 August, 2023
Author: Sharmila U. Deshmukh
Bench: A. S. Gadkari, Sharmila U. Deshmukh
2023:BHC-AS:23929-DB
Osk 9-Wp-475-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 475 OF 2022
Pooja Sachin Gaikwad & Anr. ... Petitioners
V/s.
The State of Maharashtra & Anr. ... Respondents
WITH
CRIMINAL WRIT PETITION NO. 474 OF 2022
Sapna Raju Gaikwad & Anr. ... Petitioners
V/s.
The State of Maharashtra & Anr. ... Respondents
Mr. Raju Suryawanshi for Petitioner(s).
Mr. J.P. Yagnik, A.P.P. for Respondent No.1-State.
CORAM : A. S. GADKARI AND
SHARMILA U. DESHMUKH, JJ.
DATE : 21st August 2023.
P.C. :
1. Present Petitions under Article 226 of the Constitution
of India are filed for quashing of CR No. I-593 of 2021, dated 19 th November 2021, registered with Kalyan Taluka Police Station, District Thane, under Section 306 read with 34 of the Indian Penal Code.
2. Admittedly, during the pendency of present Petitions, police have completed investigation and submitted chargesheet before the trial Court. In view thereof, the Petitioner(s) are having substantive alternate statutory remedy under the provisions of Criminal Procedure Code (Cr.P.C.) by way of 1/3 Osk 9-Wp-475-2022.odt either filing an application for discharge and/or to contest the said case before the trial Court.
3. It is the settled position of law and as has been decided in catena of decisions by the Hon'ble Supreme Court, ordinarily the Court will not entertain a Petition under Article 226/227 of the Constitution of India, where the Petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is well recognized principle which gained judicial recognition that, the High Court should direct party to avail himself of such remedies, one or the other before he resorts to the constitutional remedy. Reliance is placed on the following decisions :
i) Thansingh Nathmal Vs.The Superintendent of Taxes, Dhubri & Ors., reported in AIR 1964 SC 1419.
ii) A. Venkatasubbiah Naidu Vs. S. Chellappan & Ors., reported in (2000) 7 SCC 695.
iii) Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329.
iv) Radhey Shyam & Anr. Vs. Chhabi Nath & Ors., reported in (2015) 5 SCC 423.
v) Genpact India Private Limited Vs. Deputy Commissioner of Income-Tax & Anr., reported in (2019( 419 ITR 440 (SC).
vi) Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors.
Vs. Tuticorin Educational Society & Ors., reported in (2019) 9 SCC 538.
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Osk 9-Wp-475-2022.odt
4. According to us, filing an application for discharge before the Trial Court is not an onerous remedy and in fact an equally efficacious remedy. The Petitioners cannot be permitted to raise a spacious plea calling upon this Court to adjudicate his innocence in a Petition under Article 226 of the Constitution of India. It is against the settled principles of law. At the same time, the Petitioners cannot be permitted to make the statutory provisions of the Code of Criminal Procedure otious, by directly approaching this Court under Article 226 of the Constitution of India.
5. In view of the above and by reserving the remedy of filing application for discharge in the Trial Court, both the Petitions are disposed off.
[ SHARMILA U. DESHMUKH, J. ] [ A.S. GADKARI, J. ]
Signed by: Omkar S. Kumbhakarn
Designation: PA To Honourable Judge 3/3
Date: 23/08/2023 10:38:33