Single judge observed that the petitioner has alternative remedies under CrPC via revision and Section 482. The cited SC judgment was distinguished on facts. Writ petition dismissed as not maintainable.
Writ petition dismissed as not maintainable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. CIVIL WRIT PETITION NO.1133/08
Sushil Vs. State of Raj. & Anr.
Date of order : 8/2/2008.
HON'BLE MR.JUSTICE MOHAMMAD RAFIQ
Shri Yogesh Kumar Gupta for the
petitioner.
******
The writ petition has been filed by
the petitioner against the orders dated
13.12.2007 and 18.1.2008. The first order
dated 3.12.2007 was passed by the
Additional Civil Judge (Jr. Division) cum
Judicial Magistrate no.13 in a criminal
complaint filed against the petitioner
under Section 138 of the Negotiable
Instruments Act. By that order, the
application of the petitioner filed under
Section 311 to summon three persons as
witnesses for the purpose of their
examination and sending cheques for
examination by handwriting expert was
2
rejected. The second order dated 18.1.2008
has been passed by the Court of Special
Judge, Jaipur City Jaipur whereby revision
petition filed by the petitioner under
Section 397 of the Code of Criminal
Procedure against the aforesaid order has
been rejected.
Learned counsel for the petitioner has
argued that since the cheques on the basis
of which proceedings under Section 138 of
the Negotiable Instruments Act were
initiated against the petitioner were
forged, the request of such cheques to be
examined by hand-writing expert and
submitting the defense witnesses ought to
have been granted. Order initiating the
proceedings being nullity in law would be
liable to be challenged even in the writ
petition. Learned counsel for the
petitioner has cited the judgment of the
Supreme Court in A.V. Papayya Sastry &
3
Ors. Vs. Govt. of A.P. & Ors., 2007 (4)
SCC 221 and argued that such order can be
challenged at any stage, whether in
appeal, revision, writ or even in
collateral proceedings.
Having heard the learned counsel for
the petitioner and perused the material
forming part of the record, I find that
the petitioner has already availed of the
remedy under the Code of Criminal
Procedure by filing the revision petition
before the Court of Special Judge, Jaipur
City, Jaipur. The petitioner has the
remedy even before this Court by way of
petition under Section 482 of the Code of
Criminal Procedure. In the face of such a
remedy, the argument of the petitioner
that writ petition should be entertained
in preference to petition aforesaid cannot
be appreciated. The judgment of Supreme
Court cited by the learned counsel for the
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petitioner is distinguishable on facts and
therefore cannot be applied to the present
case.
The writ petition is therefore
dismissed as being not maintainable though
with the aforesaid observations.
(MOHAMMAD RAFIQ), J.
RS/
2 issues framed by the court
Whether a writ petition challenging orders rejecting application for examination of cheques and summoning witnesses is maintainable ex parte given the availability of revision and Section 482 CrPC rem
Whether the Supreme Court judgment in A.V. Papayya Sastry is applicable to the present facts regarding maintainability of the writ petition.
Colour shows how this judgement treated each authority
A.V. Papayya SastryDistinguished¶21
A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors., 2007 (4) SCC 221 · Who else cites this
Section 138 of the Negotiable Instruments ActReferred
Section 311Referred
Section 397 of the Code of Criminal ProcedureReferred
1 provisions across 1 enactments
Sushil
State of Raj.
MOHAMMAD RAFIQ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
MOHAMMAD RAFIQ
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