My Own Eco Energy Private Ltd., And ... vs State Of Maharashtra And Anr
2023 Latest Caselaw 11502 Bom

2023:BHC-AS:34915-DB
            CAJ                                                                14-Wp-3346-2023.doc



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                     CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL WRIT PETITION NO. 3346 OF 2023

            My Own Eco Energy Private Ltd., And Anr.                       ... Petitioners

                     V/s.
            State Of Maharashtra And Anr.                                  ... Respondents

            Mr. Sanjeev Kadam i/b Mr. Vishwajeet Mohite for Petitioners.
            Mr. H. J. Dedhia, APP for Respondent No.1-State.
            Mr. Niranjan Bhavake i/b Bhavake And Associates for Respondent No.2.


                                                 CORAM : A.S. GADKARI AND
                                                         SHYAM C. CHANDAK, JJ.

                                                 DATE    : 8th NOVEMBER, 2023.
            P.C. :

            1)               By the present Petition under Article 226 of the Constitution of

India and under Section 482 of Criminal Procedure Code, Petitioners have

prayed for quashing of R.C.C. No. 62 of 2022 pending on the file of learned

Judicial Magistrate First Class, Radhanagari, District Kolhapur, arising out

of C.R. No. 158 of 2019, dated 19th September, 2019 registered with

Radhanagari Police Station, Kolhapur, under Sections 406, 420, 467, 468,

471 read with Section 34 Indian Penal Code.

2) Admittedly and even as per the pleadings of the Petitioner,

after completion of investigation of present crime, police have submitted

charge-sheet.

 CAJ                                                                14-Wp-3346-2023.doc



3)               Petitioners thus are having a substantive alternate statutory

remedy of filing an application for discharge, as contemplated under the

provisions of Criminal Procedure Code, before the Trial Court.

4) 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.

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.

 CAJ                                                                14-Wp-3346-2023.doc



5)               According to us, availing a statutory remedy, of 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 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 otious, by directly approaching this Court under Article 226 of

the Constitution of India.

6) Despite the aforesaid settled legal position, Mr. Kadam, learned

counsel appearing for Petitioners insisted this Court to hear the Petition on

merits and also to adjudicate the defence of the Petitioners in the present

Petition filed under Article 226 of the Constitution of India. We are unable

to accept the request of learned counsel in view of the settled position of

law, as the defence of the accused can not be adjudicated in a Petition

under Article 226 of the Constitution of India.

7) The Hon'ble Supreme Court in the case of Central Bureau of

Investigation Vs. Aryan Singh, dated 10th April 2023 passed in Criminal

Appeal No. 1025-1026 of 2023 (@ SLP (CRL.) NOS. 12794-12795 of 2022)

has held that, the High Court cannot conduct a mini trial for appreciation of

evidence on record, while dealing with an application under Section 482 of

Cr.P.C., as it is a mini trial and consider the applications as if those are

against the judgment and Orders of the Trial Court on conclusion of trial.

CAJ 14-Wp-3346-2023.doc

As per the cardinal principle of law, at the stage of discharge and/or

quashing of criminal proceedings, while exercising powers under Section

482 of Cr.P.C., the Court is not required to conduct a mini trial.

8) In view of above, by reserving the remedy of the Petitioners for

filing an application for discharge before the Trial Court, Petition is

disposed off.

                     (SHYAM C. CHANDAK, J.)                                     (A.S. GADKARI, J.)



          Digitally signed
          by CHAITANYA
CHAITANYA ASHOK
ASHOK     JADHAV
JADHAV    Date:
          2023.11.10
          19:00:16 +0530