Suvarna Raghunath Devre v. The Commissoner Of Police And ANR

BGA 19-Wp-6788-2021.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.6788 OF 2021 Suvarna Raghunath Devre ... Petitioner V/s.

The Commissoner Of Police And Anr.

... Respondents Mr. Anuj Tiwari for Petitioner.

Mrs. S.D. Shinde, APP for Respondent-State.

CORAM : A.S. GADKARI AND PRAKASH D. NAIK, JJ.

DATE : 17th JANUARY, 2023.

P.C. :

1.

By the present Petition, Petitioner is seeking registration of crime on the basis of her complaint dated 1st October, 2021 against certain persons.

2.

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 1/3

BGA 19-Wp-6788-2021.odt (2007) 6 SCC 171 (3 Judges of SC);

(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.

3.

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 he 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. reported in (2000) 7 SCC 695;

2/3

BGA 19-Wp-6788-2021.odt 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.

4.

In view of the above, present Petition is not maintainable and is accordingly dismissed by granting liberty to Petitioner to adopt appropriate alternate remedy as may be advised and permissible under the law. Leave and liberty granted.

5.

Petition is dismissed with aforesaid liberty. (PRAKASH D. NAIK, J.) (A.S. GADKARI, J.) 3/3