Chakali Gokari vs The State Of Ap
2023 Latest Caselaw 831 AP

       IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

     HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                                            &
                  HON'BLE MR. JUSTICE NINALA JAYASURYA

                          WRIT APPEAL No.244 of 2023
                                  (Through physical mode)

Chakali Gokari S/o. Late Pedda Gokari @ Yerranna,
age 57 years, Occ: Agriculturist, R/o.2-93,
Chinthalapalle Village, Midthur Mandal,
Nandyala District, and others.
                                                              .. Appellants
       Versus
The State of Andhra Pradesh,
Rep. by its Principal Secretary,
Revenue Department, Secretariat,
Velagapudi, Guntur District, and others.
                                                            .. Respondents

ORAL JUDGMENT Dt: 13.02.2023 (per Prashant Kumar Mishra, CJ)

This writ appeal would call in question the order dated 19.12.2022

passed by the learned single Judge dismissing W.P.No.38847 of 2022 filed by

the appellants herein questioning the order dated 19.03.2020 passed in

M.C.No.41 of 2020 under Section 145 Cr.P.C. by the Executive Magistrate and

Tahsildar, Midthur, Nandyal District.

2. The learned single Judge referred to an earlier order passed by this

Court in W.P.No.18784 of 2021, wherein, in similar circumstances, it was held

that the writ petitioners therein have to avail the efficacious alternative

remedy available under Section 397(1) Cr.P.C. against the proceedings under HCJ & NJS,J

Section 145 Cr.P.C. rather than invoking the extraordinary jurisdiction of this

Court under Article 226 of the Constitution of India. Having taken note of the

same, the learned single Judge held that while the parties can always

approach this Court under the writ jurisdiction of this Court, it would be

advisable and appropriate that a revision is filed under Section 397 Cr.P.C.

unless extraordinary grounds are pointed out and, accordingly, dismissed the

writ petition leaving it open to the writ petitioners to approach this Court

under its jurisdiction arising out of Section 397(1) Cr.P.C.

3. Learned counsel for the appellants/writ petitioners would rely upon a

recent decision of the Hon'ble Supreme Court in Raj Shri Agarwal @ Ram

Shri Agarwal v. Sudheer Mohan reported in 2023 SAR (Civil) 139,

wherein the Hon'ble Supreme Court found fault with the order passed by the

High Court in dismissing the writ petition under Article 227 of the Constitution

of India as not maintainable in view of availability of alternative remedy under

Section 115 C.P.C. Learned counsel would contend that the Hon'ble Supreme

Court has categorically held that there is a difference and distinction between

the entertainability and maintainability and in view of the ratio laid down in

the aforesaid decision, the writ petition under Article 226 of the Constitution

of India is maintainable despite the availability of remedy of revision under

Section 397 Cr.P.C.

HCJ & NJS,J

4. There is no quarrel with the legal position as has been held by the

Hon'ble Supreme Court in Raj Shri Agarwal @ Ram Shri Agarwal (supra).

While it is true that the bar of alternative remedy is not an absolute bar and

in appropriate cases, the Court can exercise jurisdiction under Article 226 or

227 of the Constitution of India despite availability of alternative remedy, it is

also to be kept in mind that exercise of such extraordinary jurisdiction

bypassing the alternative remedy is justifiable only in cases where the order

under challenge has been passed by the authority beyond its jurisdiction or in

blatant violation of principles of natural justice or the order is ex facie

arbitrary and illegal.

5. In the instant case, the appellants/writ petitioners have not pleaded

any extraordinary or compelling reasons, so as to impress upon this Court to

invoke the jurisdiction under Article 226 of the Constitution, bypassing the

remedy of efficacious alternative remedy under Section 397(1) Cr.P.C. On

examination of the pleadings in the writ affidavit, it is apparent that there is a

property dispute between the appellants and another group of persons and

considering the requisition from the concerned police authority regarding

breach of peace and law and order problem on account of that property

dispute between two groups, the Executive Magistrate passed orders

exercising jurisdiction under Section 145 Cr.P.C. In the absence of any

special or compelling reason to exercise the writ jurisdiction under Article 226 HCJ & NJS,J

of the Constitution of India, circumventing the remedy of revision under

Section 397 Cr.P.C., we are of the considered opinion that the learned single

Judge has rightly opined that it would be advisable and appropriate that a

revision is filed under Section 397 Cr.P.C. unless extraordinary grounds are

pointed out.

6. There is no substance in this writ appeal and the same is, accordingly,

dismissed. No costs. Pending miscellaneous applications, if any, shall stand

closed.

PRASHANT KUMAR MISHRA, CJ                            NINALA JAYASURYA, J

                                                                               IBL