Vinod Prasad, J. - (1.) -The two petitioners Rajeev Kumar and Bibhav Kumar are the charge-sheeted accused of case Crime No. 55 of 2007 (Case No. 5859 of 2007), under Sections 353, 504 and 506, I.P.C., police station Sector 20, N.O.I.D.A., District Gautam Budh Nagar vide Annexure-9 to this writ petition. C.J.M., Gautam Budh Nagar has taken cognizance of the offence on 5.7.2007 and registered Case No. 5859 of 2007, State v. Rajeev Kumar and others and have summoned the accused persons vide his order dated 5.7.2007 fixing 5.8.2007 for their appearance. Hence, this writ petition by the petitioner with the prayer to issue writ order or direction in nature of certiorari quashing of all proceedings emanating from F.I.R. of Crime No. 55 of 2007 (Case No. 5859 of 2007) for the aforesaid offences vide Annexure-9 to this writ petition. The ancillary prayer is to direct respondent authorities to compensate the petitioners for loss of their life and personal liberty on account of their illegal detention on 25.1.2007 to be determined and fixed by this Court as demanded in paragraph 35 of the writ petition, which has been quantified as Rs. 3,00,000 (Rs. three lac).
(2.) SRI Ravi Kiran Jain, learned senior counsel argued the petition on behalf of the petitioners and the learned A.G.A. in opposition. At the very outset of this writ petition the question which cropped up for adjudication was that if the petitioners have got an alternative efficacious or speedy remedy of challenging the summoning order by filing a revision or an application under Section 482, Cr. P.C., why we should entertain this writ petition? The said question was mooted for our consideration because of the preliminary objection raised by learned A.G.A. that the petitioners have got an alternative statutory remedy under Section 397 (1) read with Section 401 (1), Cr. P.C. as well as under Section 482, Cr. P.C. and, therefore, this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. Allowing the litigants to eschew the statutory remedy available to them and invoke the writ jurisdiction of this Court will saddle the dockets of this Court with unsurmountable load of writ petitions to an unmanageable limits, which should not be encouraged. Corollary of the argument is that before this Court exercise extraordinary power under Article 226 of the Constitution of India, petitioners should be relegated to exhaust all the statutory alternative remedies. Learned A.G.A. contended that possession of power is one thing and exercise thereof is quite another. Even though there is no dearth in exercising writ power but it should not be exercised to circumvent equally efficacious speedy and effective statutory remedy. On the said mooted question, we have heard Sri Ravi Kiran Jain, learned senior counsel on behalf of the petitioners and learned A.G.A. in opposition.
(3.) SRI Ravi Kiran Jain, learned senior counsel vehemently argued that Section 482, Cr. P.C. is not an efficacious remedy as under Section 482, Cr. P.C., High Court cannot grant compensation for an illegal detention, which compensation has been claimed by him as the secondary relief in this writ petition, the primary relief being quashing of charge-sheet and the proceedings. SRI Jain contended that in view of the law laid down in Ms. Pepsi Foods Limited and another v. Special Judicial Magistrate and others, AIR 1998 SC 128, alternative remedy is not an absolute bar in exercise of extraordinary constitutional power under Article 226 of the Constitution of India. SRI Jain contended that writ power has been conferred on the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. He submitted that nomenclature is not material and therefore, the instant writ petition should not be thrown out on the ground of alternative remedy. He further submitted that for the reasons quoted above Section 482, Cr. P.C. is not the efficacious remedy and therefore, the writ petition be entertained. Learned A.G.A. on the other hand contended that Section 482, Cr. P.C. is the inherent power vested in this Court to do ex debto justice. He refuted the arguments of learned senior counsel for the petitioners and submitted that since the petitioners can seek effective remedy under Section 482, Cr. P.C., wherein they can even refer to the evidences collected during investigation by the police and therefore, they should be relegated to alternative remedy as now the charge-sheet has been submitted against the petitioners and in this writ petition no material collected during investigation has been appended which was an indispensable necessity to consider grant of primary relief prayed for. Quashing of charge-sheet require analysing the evidences collected during investigation to come to a definite conclusion that no offence of any kind whatsoever is made out against the petitioners and therefore, this writ petition bereft of such materials should not be entertained. Concludingly, he contended that the writ petition be dismissed on the ground of efficacious alternative statutory remedy.;