Telangana High Court
Challa Jithender Reddy vs The State Of Telangana on 28 April, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 22234 OF 2022
O R D E R:
This Writ Petition is filed questioning the action of respondent Nos.2 and 3 in not taking action against the accused in F.I.R.No.15 of 2022 dated 13.02.2022 on the file of Tekumatla Police Station, Jayashankar Bhupalapally District, for the offences under Sections 294B, 447, 427 and 506 read with 149 IPC, as illegal and arbitrary.
2. Sri C.M.R.Velu, learned counsel for the petitioner, submits that the petitioner is the Manager of M/s.Sri Venkateshwara Sales Corporation, a partnership firm. The said firm purchased an extent of Ac.21.07 guntas in Survey No.412 situated at Raghavapur Village, Tekumatla Mandal from its vendor Karka Srinivas Reddy through registered sale deed dated 30.05.2017 and since then the firm is in continuous possession and enjoyment of the said property. Earlier, when respondent No.4 interfered with the property, the petitioner filed O.S.No.1 of 2020 and O.S.No.45 of 2022 and obtained permanent injunction and ad-interim injunction respectively against two different groups and the said orders are still subsisting. While so, on 12.02.2022 at about 1000 hours, when respondent No.4 and others trespassed into the above land and threatened 2 to kill the petitioner and asked him to get out from the land, he filed a complaint before the respondent police, which was registered as F.I.R.No.15 of 2022 on 13.02.2022 against respondent No.4 and others for the offences under Sections 294B, 447, 427 and 506 read with 149 IPC. But, surprisingly, the respondent police did not take any action and they neither issued notice under Section 41-A Cr.P.C. nor commenced their investigation. Learned counsel submits that the inaction of the respondent police is highly arbitrary and illegal. Hence, the petitioner has come up before this Court by filing a Writ Petition.
3. Learned Assistant Government Pleader for Home Sri S. Rama Mohan Rao submits that he will get instructions in this matter and file a detailed counter.
4. Though there are no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whenever a person complains of violation of his fundamental right or statutory right, one of the self imposed restraint is when there is statutorily engrafted adequate and efficacious alternative remedy available to such person to redress his grievance the court do not entertain the writ petition but relegate the party 3 to avail such remedy before invoking extraordinary jurisdiction of this Court.
5. The Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for 1 2005(3) ALD 233(LB) 4 redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." (emphasis supplied) Commissioner of Income Tax v. Chhabil Dass Agarwal2
6. Despite wide powers conferred by Article 226 of the Constitution, while passing any order, the Courts must bear in mind certain self- imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise.
State of West Bengal v. Committee for Protection of Democratic Rights3
7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure 2 (2014) 1 SCC 603 3 (2010) 3 SCC 571 5 of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged.
Harbanslal Sahnia v. Indian Oil Corpn. Ltd.4
8. Generally, this Court is not entertaining the Writ Petitions filed questioning the registration or non-registration of the complaint / FIR, as, as rightly pointed out by the learned Assistant Government Pleader, the Coordinate Bench of this Court in Writ Petition No. 38397 of 2019 and batch, dated 08.03.2019 has categorically observed that in the case of non- registering the complaint, the remedy for the affected person is to file a private complaint.
9. The writ remedy is no doubt an extraordinary remedy and in every case just because a case is made out on action / inaction of an authority vested with power, the Writ court will not entertain the writ petition and the affected party has to avail the remedy available under law. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai5, the Hon'ble Apex Court has observed that under Article 226 of the Constitution, the High Court having regard to the facts and circumstances has discretion to entertain or not to entertain a writ petition but the High 4 (2003) 2 Supreme Court Cases 107 5 (1998) 8 SCC 1 6 Court has imposed certain restrictions one of which is that if an effective alternative remedy is available, the High court would not normally exercise the jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies; namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
10. In the light of the law laid down by this Court and the Apex Court referred to supra, when there is a statutorily-engrafted adequate and efficacious alternative remedy available to the person, who complains, to redress his grievance, the Court do not entertain the writ petition but relegate the party to avail such remedy before invoking extraordinary jurisdiction of this Court. In this case, the effective alternative remedy available to the petitioner is to file a private complaint under Section 200 Cr.P.C., which is an effective alternative remedy, but not a Writ Petition invoking Article 226 of the Constitution of India. Therefore, this Court finds no reason to entertain this Writ Petition.
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11. The Writ Petition is, accordingly, disposed of giving liberty to the petitioner to avail appropriate remedy available to him under law. There shall be no order as to costs.
Miscellaneous applications, pending if any, shall stand automatically closed.
__________________________ LALITHA KANNEGANTI, J Date: 28.04.2022 mar