Bombay High Court
Alnesh Skil Somji And Anr vs State Of Maharashtra And Anr on 4 July, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:26988-DB
ssm 60-wp3008.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3008 OF 2022
Alnesh Akil Somji & Anr. .....Petitioners
Vs.
State Of Maharashtra & Anr. .....Respondents
Mr. Sahil Namavati and Ms. Ruxshin Basta i/by Lexicon Law Partners for
the Petitioners.
Mr. A.S. Shalgaonkar APP, for the Respondent-State.
Adv. Harshada Shrikhande i/by Adv. Siddharth A. Mehta for the Respondent
No.2.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
DATE : 4th JULY, 2024.
P.C.:-
1) Present Petition is filed by the Petitioners for quashing of Special Case No.49 of 2022 pending on the file of Special Designated Court (MPID), Pune, arising out of C.R. No. 153 of 2021 dated 27 th October, 2021 registered with Koregaon Park Police Station, Pune City, Pune under Sections 406, 409, 420 read with Section 34 of the Indian Penal Code, 1860 and under Sections 3 and 4 of the MPID Act.
2) The Petitioners are having substantive alternate remedy by way of filing an Application for discharge under the provisions of Cr.P.C. before the trial Court.
3) It is the settled position of law and as has been decided in
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catena of decisions by the Hon'ble Supreme Court, ordinarily the Court will not entertain the 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 2/3 ::: Uploaded on - 10/07/2024 ::: Downloaded on - 17/07/2024 05:02:08 ::: ssm 60-wp3008.2022.doc in (2019) 9 SCC 538.
vii) Magadh Sugar & Energy Ltd. Vs. State of Bihar & Ors., reported in 2021 SCC OnLine SC 801.
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 specious 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 Petitioner cannot be permitted to make the statutory provisions of the Code of Criminal Procedure 1973 otious, by directly approaching this Court under Article 226 of the Constitution of India.
5) In view of the above, by reserving the alternate remedy in favour of the Petitioners, Petition is disposed off.
( DR. NEELA GOKHALE, J.) (A.S. GADKARI, J.)
Digitally signed
SANJIV by SANJIV
SHARNAPPA
SHARNAPPA MASHALKAR
MASHALKAR Date: 2024.07.10
15:54:20 +0530
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