Karan Oberoi v. The State Of Maharashtra And ANR

S S KADAM 18-wp-22-2020.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 22 OF 2020 Karan Oberoi ... Petitioner V/s.

The State of Maharashtra and Anr.

... Respondents Mr. Rizwan Merchant along with Mr. Mikhail Dey and Mr. Anish Sharma for Petitioner.

Mr. S. S. Hulke, APP for Respondent No.1-State. CORAM : A.S. GADKARI AND SHIVKUMAR DIGE, JJ.

DATE : 27th JULY, 2023.

P.C. :

1.

Present Petition is filed by the Petitioner for quashing of FIR No. 169 of 2019 dated 4th May 2019, registered with Oshiwara Police Station, Mumbai, under Sections 376, 376(2),384, 328 and 506 of the Indian Penal Code, 1860.

2.

Admittedly, and even as per the submissions of the learned counsel for Petitioner, after completion of the investigation, Police have submitted chargesheet. In view thereof, Petitioner is having substantive alternate remedy by way of filing an application for discharge before the Trial Court. 3.

It is a settled position of law and as has been decided in catena of Digitally signed by SHUBHADA SHANKAR KADAM Date:

2023.08.02 12:03:27 +0530 decisions by the Hon'ble Supreme Court, ordinarily the Court will not SHUBHADA SHANKAR KADAM 1/3

S S KADAM 18-wp-22-2020.doc 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 in (2019) 9 SCC 538.

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 Petitioner cannot be permitted to raise a spacious plea, calling upon this Court to adjudicate his innocence in a Petition under Article 226 of the 2/3

S S KADAM 18-wp-22-2020.doc 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 otiose, 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, Petition is disposed off. (SHIVKUMAR DIGE, J.) (A.S. GADKARI, J.) 3/3