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A writ petition under Article 226 can be denied for not exhausting the alternative and efficacious remedy: High Court of Delhi

High Court should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available and the same was upheld by High Court of Delhi through the learned bench led by JUSTICE CHANDRA DHARI SINGH in the case of LALIT RAJ vs. UNION OF INDIA MINISTRY OF HOME AFFAIRS & ORS. [W.P.(CRL) 580/2022] on 16.03.2022.

The facts of the case are that a writ petition under Article 226 & 227 of the Constitution of India was filed on behalf of the petitioner inter alia seeking issuance of writ of certiorari for immediate arrest of accused persons and taking appropriate action against the investigation officer for delay in lodging FIR and helping accused persons.

The police was not investigating the matter as per the mandate of the judgments of the Hon’ble Supreme Court and the High Court. Even after lodging the FIR, the accused have not yet been arrested by the police. It is therefore prayed that an order be passed directing the police to arrest the accused immediately and to initiate the proceedings against the SHO, Dwarka North and ACP, Dwarka Sector 23 as they have not discharged their duty properly.

The counsel appearing on behalf of the petitioner submitted that Rs.32,00,000 has been deposited in the account of petitioner-accused as donation. It was further submitted that the Police have caused a substantial delay of sixteen days in lodging the FIR. They lodged the FIR on only after the order of the Hon’ble High Court of Delhi. It is therefore prayed that an order be passed directing the police to arrest the accused immediately.

The counsel appearing for State and police officials vehemently opposed the instant writ petition and submitted that the instant petition is nothing but a gross misuse of process. The police has already lodged the FIR and the investigating the matter in accordance with the Code of Criminal Procedure as well as the judgments of the Hon’ble Supreme Court and this High Court. It was further submitted that after perusing the writ petition, it is evident that there is no ground available for invoking the extraordinary powers of this Hon’ble Court under Article 226 of the Constitution and hence, is liable to be dismissed with costs.

The Court observed that, “When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.” Thus, a writ to compel the police to conduct an investigation can be denied for not exhausting the alternative and efficacious remedy available under the provisions of the Code.

The Court held that High Court should not ordinarily, as a matter of routine, exercise its extraordinary writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available. Therefore, the Court did not find any merit in the instant petition and hence, did not entertain the petition for exercising its extraordinary writ jurisdiction.

Click here to read the Judgment

Judgment reviewed by – Shristi Suman

 

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