Amina Bakhshullah Khan v. State Of Maharashtra And ORS.

ssk IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL CRIMINAL APPELLATE APPELLATE JURISDICTION JURISDICTION CRIMINAL WRIT PETITION NO. 662 OF 2022 Amina Bakhshullah Khan ..Petitioner

Versus

State of Maharashtra and Ors.

..Respondents Mr. A.A.Siddhique & Associate for Petitioner. Ms. J. S. Lohakare, APP for State.

CORAM :A. S. GADKARI & MILIND N. JADHAV, JJ.

DATE :20th October, 2022.

P.C.

:

.

Petitioner has a substantive alternate remedy available under the provisions of Criminal Procedure Code and without availing such a remedy, Petitioner has directly approached this Court. Even otherwise, a Writ Petition under Article 226 of the Constitution of India for lodgment of FIR is not maintainable. Reliance is placed on the following decisions:- (i) All India Institute of Medical Science Employee' s Union (Regd.) Through its President Vs. Union of India & Ors. reported in (1996) 11 SCC 582;

(ii) Gangadhar Janardhan Mhatre Vs. State of Maharashtra & Ors., reported in 2005 SCC (Cri) 404;

(iii)Aleque Padamsee & Ors. Vs. Union of India & Ors., reported in (2007) 6 SCC 171 (3 Judges of SC); 1/3

(iv)Sakiri Vasu Vs. State of Uttar Pradesh & Ors., reported in (2008) 2 SCC 409 and (v) Sunil Jabarchand Modi Vs. State of Maharashtra & Ors. (Cri. W.P. 317/2011 dated 8.12.2011).

(vi)Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage & Ors., reported in (2016) 6 SCC 277.

(vii) M. Subramaniam & Anr. Vs. S. Janaki & Anr., reported in (2020) 16 SCC 728.

2.

It is the settled position of law and as has been decided in a catena of decisions by 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 a well-recognized principle which gained judicial recognition that, the High Court should direct the party to avail himself of such remedies one or the other before the resorts to a 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. 2/3

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) and (vi)Virudhunagar Hindu Nadargal Dharma Paribalana Sabai & Ors. Vs. Tuticorin Educational Society & Ors. reported in (2019) 9 SCC 538.

3.

In view of the above, learned Advocate for the Petitioner seeks leave to withdraw present Petition with liberty to file private complaint, if so advised and permissible under the provisions of law. 4.

With aforesaid liberty Petition is dismissed [ MILIND N. JADHAV, J. ] [A. S. GADKARI, J.] SONALI SATISH KILAJE by SONALI SATISH KILAJE Date:

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