Jharkhand High Court
Mohamad Anwar Malik @ Anwar Mallick vs The State Of Jharkhand on 5 February, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 844 of 2023
1. Mohamad Anwar Malik @ Anwar Mallick, aged about 49
years, son of Ashraf Malik
2. Md. Akbar @ Akbar Mallick, aged about 50 years, son of
Ashraf Malik
3. Shahanuman @ Salman Mallick, aged about 40 years, son of
Ashraf Malik
4. Shabnam Ara @ Sabnam, aged about 36 years, wife of Salman
Mallick @ Shahanuman
5. Altmas Mallcik, 23 years, son of Akbar Mallick
6. Afzal Mallick @ Afzal, aged about 34 years, son of Md. Ashraf
Mallick
7. Afsana @ Afsana Khatun, aged about 33 years, wife of Md.
Aliimam Mallick
All are residents of Azad Nagar, Siwnadih, P.O. Siwandih,
P.S. Marafari, Dist. Bokaro
.... Petitioners
Versus
1. The State of Jharkhand
2. Falak Mallick, D/o Md. Murtaza Hussain, resident of Azad
Nagar, P.O. Siwandih, P.S. Marafari, Dist. Bokaro.
.... Respondents
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Rajesh Kumar, Advocate
: Mr. Ramesh Kumar, Advocate
For the State : Mr. Jai Prakash, AAG-IA
: Mr. Yogesh Modi, AC to AAG-IA
.....
By the Court:-
1. Heard the parties.
2. This Writ Petition has been filed invoking the jurisdiction of this
Court under Article 226 of the Constitution of India with a prayer for
issuing appropriate writ/order/direction to quash the entire
criminal proceeding including the order dated 08.09.2023, passed by
the learned Special Judge, (POCSO Act), Bokaro in connection with
C.P. Case No. 1030 of 2023 whereby and where under the learned
Special Judge has found sufficient materials involving the offences
punishable under Section 8 of the POCSO Act and under Section
341/323/379/354/504/506/509 of the Indian Penal Code and
ordered for issuance of summons.
3. It is submitted by the learned counsel for the petitioners that the
allegation against the petitioners is that the victim was a minor girl
on the date of occurrence. On 02.02.2022 between 6:30 P.M. to 07:00
P.M., the petitioner no.1 caught hold of the victim and attempted to
kiss her. The victim somehow managed to escape from the clutches
of the petitioner no.1 and intimated the matter to her maternal aunt
and the maternal aunt of the victim came out from her house and
raised hue and cry. The petitioners being armed with hockey stick
and iron rod assaulted the grandfather of the victim causing injuries
to him. The petitioner nos. 4 to 7 assaulted the family members of the
victim and snatched away the gold chain of the victim. Many people
assembled there and thereafter the petitioners went away from the
place of occurrence after threatening. It was also alleged that the
petitioner no.1 was keeping an evil eye upon the victim and the
grandfather of the victim once gave an oral report to the police and
the petitioner no.1 went to the police station and told that he will not
repeat the same again. On the basis of the written application filed
by the grandfather of the victim, Marafari P.S. Case No. 15 of 2022
was registered and police took up investigation of the case. Police
submitted the Final Form and did not send up the petitioners for
trial because of lack of evidence against them. As the informant-
grandfather of the victim died on 08.11.2022, the victim filed protest
petition and on the basis of the protest petition, statement under
solemn affirmation of the complainant and the statement of the
inquiry witnesses, the learned Special Judge found prima facie case
for the said offence against the petitioners as already indicated
above.
4. It is submitted by the learned counsel for the petitioners that there
was dispute between the families and for taking revenge, this false
case has been foisted with an intention to harass the family members
of the petitioners and to pressurize them to withdraw the case filed
by them against the alleged victim and her family members. Hence,
it is submitted that the prayer as prayed for in this writ petition be
allowed.
5. Learned counsel for the State on the other hand vehemently
opposes the prayer as made by the writ petitioners in this writ
petition and submits that this writ petition is not maintainable as by
invoking Article 226 of the Constitution of India, a writ of certiorari
cannot be issued to quash a judicial order passed by the learned
Special Judge in C.P. Case No. 1030 of 2023 dated 08.09.2023. It is
next submitted by the learned counsel for the State that the only
ground upon which the petitioners have sought quashing of the said
cognizance order is that the allegation against the petitioners are
false and this case has been foisted to harass the petitioners but same
at best can be a defence of the petitioners in a full dressed trial but
the defence of the petitioners cannot be considered at this stage in a
writ petition to quash the entire criminal proceeding. Hence, it is
submitted that this writ petition being without any merit be
dismissed.
6. Having heard the rival submissions made at the Bar and after
going through the materials available in the record, it is pertinent to
mention here that it is a settled principle of law as has been held by
the Full Bench of Hon'ble Patna High Court in the case of Ramesh
Kumar Ravi @ Ram Prasad & Etc. vs. State of Bihar & Ors.
reported in 1987 SCC OnLine Pat 83 in answer to the question
"Whether the judicial orders of a criminal court (stricto sensu)
under the Code of Criminal Procedure, are amenable to quashing
by a writ of certiorari?" by observing thus in paragraph no.36:-
"36. In the light of the foregoing discussions the answer
to the question No. (iv) posed at the very outset is
rendered in the negative and it is held that the judicial
orders of a criminal court stricto sensu under the Code
of Criminal Procedure are not amenable to quashing by
a writ of certiorari."
7. This settled principle of law has been reiterated by the Hon'ble
Supreme Court of India albeit in response to an order passed by a
civil court in the case of Municipal Corporation of Greater
Mumbai and Ors. vs. Vivek V. Gawde & Ors. reported in 2024
SCC OnLine SC 3722 and relying upon its judgment in the case of
Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in (2015)
5 SCC 423 rendered by a three Judge Bench, paragraph no.25 of
which is quoted in paragraph no.14 of the judgment of Municipal
Corporation of Greater Mumbai and Ors. vs. Vivek V. Gawde &
Ors. (supra) which reads as under:-
"14. In view of such binding decision, the inescapable
conclusion presenting itself is that the appellate order
under challenge before the High Court was rendered by a
civil court, and it is trite that orders passed by a civil
court cannot be challenged in a writ petition under
Article 226 of the Constitution. This point in law has
been decisively reiterated in the 3-Judge Bench decision
in Radhey Shyam v. Chhabi Nath. This Court, while
holding that an order of the civil court could only be
challenged under Article 227 of the Constitution, and
not Article 226 thereof, ruled that:
"25.***All the courts in the jurisdiction of a High
Court are subordinate to it and subject to its control
and supervision under Article 227. Writ jurisdiction
is constitutionally conferred on all the High Courts.
Broad principles of writ jurisdiction followed in
England are applicable to India and a writ of
certiorari lies against patently erroneous or without
jurisdiction orders of tribunals or authorities or
courts other than judicial courts. There are no
precedents in India for the High Courts to issue writs
to the subordinate courts. Control of working of the
subordinate courts in dealing with their judicial
orders is exercised by way of appellate or revisional
powers or power of superintendence under Article
227. Orders of the civil court stand on different
footing from the orders of authorities or tribunals or
courts other than judicial/civil courts. While
appellate or revisional jurisdiction is regulated by the
statutes, power of superintendence under Article 227
is constitutional. The expression "inferior court" is
not referable to the judicial courts, as rightly observed
in the referring order [Radhey Shyam v. Chhabi
Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted
above.
***
27. Thus, we are of the view that judicial orders of
civil courts are not amenable to a writ of certiorari
under Article 226. We are also in agreement with the
view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC
616] of the referring Bench that a writ of mandamus
does not lie against a private person not discharging
any public duty. Scope of Article 227 is different from
Article 226." (Emphasis supplied)
8. In view of the settled principle of law, this Court has no hesitation
in holding that certainly a writ of certiorari cannot be issued under
Article 226 of the Constitution of India for quashing the order passed
by a judicial court. Otherwise also, the sole ground upon which the
petitioners have sought quashing of the order by which the learned
Special Judge has found prima facie case of the offences is that the
allegation against the petitioners is false but such a plea, as has
rightly been submitted by the learned counsel for the State, can be
taken as a defence during a full dressed trial of the case but the
veracity of the same is not open to be tested in a writ petition. Hence,
this Court is of the considered view that there is no justifiable reason
to allow the prayer made by the petitioners in this writ petition.
9. Accordingly, this writ petition being without any merit is
dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 5th February, 2025
AFR/Sonu-Gunjan/-
