Writ petition not maintainable in high court where an alternative remedy encouraged on grounds of Public Policy: High court of Karnataka
A petition filed under Section 482 of Cr.P.C in a high court is not maintainable when there is an alternative remedy so as to further a public policy, based on Precedent set by Supreme Court. This was reiterated in the High court of Karnataka in the case of India Awake for Transparency and Azim Premji and Ors. [Writ Petition No. 12073 of 2020] by a single bench consisting of Hon’ble Justice P.S Dinesh Kumar. The facts of the case are that the NGO which is the petitioner here had filed a case before the trial court in January 2020, the proceedings for which go stayed by the Supreme Court in the month of December in the same year. This petition was filed against the director of Enforcement Directorate, to institute a special investigation team and look into offences of money laundering by the alleged Mr. Azim Premji who is the second respondent here. The petitioner has prayed for a direction against Director of Enforcement to register a case of money laundering by referring to Section 44 of the Prevention of Money Laundering Act, 2002 and submitted that stay of trial court by the apex court is Special Case is no reason to wipe out the offences committed by the private respondents.  The counsel further stated that the case involved a highe amount worth Rs.31342 crores and the enforcement agency has not taken any action even when the case is pending for more than a year now.  Hence the writ is maintainable. The counsel for the respondent, on the other hand, relied upon the landmark judgement of Sarguja Transport Service vs. State Transport Appellate Tribunal [(1987) 1 SCC 5] wherein a petition was not maintainable on the ground of public policy. Further he pointed out that the writ petition previously filed was withdrawn unconditionally leaving no room for filing a new one. The three criminal petitions filed by the petitioner were clubbed a Special Case No.69/2020 and that order after being challenged was also dismissed by this same court. Most importantly, the petitioner has the option of another remedy which is filing PCR before the Civil Court under section 190 (1) (c) and Section 156(3) under the Code of Ciriminal Procedure which they have already availed. The matter is pending in the court and this approach is efficacious as per normal procedure. In Sakiri Vasu vs. State of Uttar Pradesh and others [(2008) 2 SCC 409 ], the apex court held that “when someone has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under section 482 Cr.P.C, the High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy”.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2021 THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR WRIT PETITION No.12073 OF 2020AND : 1. 2. 3. 4. THE DIRECTOR DIRECTORATE OF ENFORCEMENT 6TH FLOOR LOK NAYAK BHAWAN KHAN MARKET NEW DELHI 110 003 MR. AZIM H. PREMJI SURVEY NO.574 DODDAKANNELI VILLAGE SARJAPUR ROAD BENGALURU 560 035 MRS. YASEEM AZIM PREMJI SURVEY NO.574 DODDAKANNELI VILLAGE SARJAPUR ROAD BENGALURU 560 035 MR. PAGALTHIVARTHI SRINIVASAN NO.524 16TH CROSS INDIRANAGAR II STAGE BENGALURU 560 038 2 5. M S HASHAM INVESTMENT AND TRADING COMPANY PVT. LTD REP. BY MR AZIM H. PREMJI DIRECTOR NO.134 NEXT TO WIPRO CORPORATE OFFICE SARJAPUR ROAD BENGALURU 560 035 ... RESPONDENTS BY SHRI. P. PRASANNA KUMAR ADVOCATE FOR R1 SHRI. C.V. GANESH SENIOR ADVOCATE FOR SHRI. SANDEEP HUILGOL ADVOCATE FOR R4 SHRI. S. GANESH SENIOR ADVOCATE FOR SHRI. SANDEEP HUILGOL ADVOCATE FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R 1 TO FORTHWITH REGISTER A CASE FOR OFFENCES IN RESPECT OF THE OFFENCE OF MONEY LAUNDERING ARISING OUT OF THE SCHEDULE OFFENCES SET OUT IN SPECIAL CASE 69 2020 ON THE FILE OF THE LD XXIII ADDITIONAL CITY CIVIL AND SESSION JUDGE BENGALURU AND SPECIAL COURT FOR PC ACT OFFENCES BENGALURU BASED ON THE INFORMATION DATED 31.01.2020 FURNISHED BY THE PETITIONER UNDER ANNEXURE E ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 13.01.2021 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY THE COURT PRONOUNCED THE FOLLOWING: Heard Shri R. Subramanian learned advocate for the petitioner Shri. C.V.Nagesh learned Senior Advocate for respondent No.4 and Shri S. Ganesh learned Senior Advocate for respondent No.5. Learned Senior Advocates for respondents raised a preliminary objection with regard to maintainability of this writ 3 petition. Among various grounds they submitted that petitioner has filed a public interest litigation registered as W.P.No.3635 2020 with a prayer inter alia for a writ of mandamus and to direct respondents No.1 to 10 therein to constitute a multi disciplinary investigation team to investigate and prosecute Shri.A.H.Premjiand his associates for the offences alleged to have been committed by them set out in its representations dated January 30 2020 and February 3 2020 submitted to respondents No.1 to 6 therein. They that Director Enforcement Directorate respondent No.1 herein was respondent No.7 in the PIL. In this writ petition petitioner has inter alia prayed for a direction against Director of Enforcement to register a case of money laundering arising out of scheduled offences set out in Special Case No.69 2020 on the file of learned XXIII Additional City Civil and Sessions Judge Bengaluru based on the information given by petitioner in its representation dated January 31 2020. 4 Shri. Nagesh learned Senior Advocate made following submissions: cid:1) Petitioner has unconditionally withdrawn the PIL. Therefore this petition is not maintainable on the ground of public policy as held in Sarguja Transport Service Vs. State Transport Appellate Tribunal1 cid:1) Petitioner has an alternative and efficacious remedy to approach the Special Judge and it has already filed PCR No.38 2020 before the XXI Additional City Civil and Sessions Judge Bengaluru under Section 190(1)(c) and Section 156(3) of the Code of Criminal Procedure and the same is pending cid:1) Petitioner has filed PCRs No.2 2018 3 2018 & 4 2018 before XXIII Additional City Civil and Sessions Judge Bengaluru against Mr. Azim Prem ji and four others and the said Court vide order dated January 27 2020 has issued process by registering all three complaints as consolidated Special Case No.69 2020. The said order was challenged before this Court in Criminal Petitions and the same have been dismissed by a common order dated May 15 2020. The said common order has been challenged in S.L.P. Nos. 2588 2590 2020 1Petitioner s firm is not in existence. The Regional Director Ministry of Corporate Affairs Chennai vide order dated August 17 2018 in proceedings under Section 8(6) of the Companies Act 2013 has revoked petitioner s licence and directed it to convert itself into a Non Section 8 Company within 30 days therefrom and to add Private Limited to its name. Petitioner has not disclosed the legal status in the writ petition cid:1) The Board of Directors of petitioner vide resolution dated July 1 2015 has authorizing Shri. R.Subramanian learned Advocate appearing petitioner to act on behalf of the Company and to do all acts in furtherance of its main object. Therefore Mr. R.Subramanian cannot act as petitioner s Advocate cid:1) This Court in Company petition No.182 2014 vide order dated March 26 2015 has sanctioned the amalgamation of four Companies namely Hasham Investment and Trading Company Pvt. Ltd. Vidya Investment and Trading Company Pvt. Ltd. Regal Investment and Trading Company Pvt. Ltd. and Napean Trading and Investment Company Pvt. Ltd. Petitioner represented by Mr.R.Subramanian has filed a Company Application in 6 the Company petition with a prayer to set aside the amalgamation order passed by this Court Shri. Ganesh learned Senior Advocate made following submissions: cid:1) Relief under Article 226 of Constitution of India is discretionary in nature cid:1) Petitioner has argued the PIL on five occasions. On the last date hearing was for about 50 minutes and he withdrew the PIL unconditionally when the Bench observed that PIL would be dismissed with exemplary cost cid:1) Shri. Subramanian learned Advocate for petitioner has admitted during the hearing of W.P. No. 11482 2020 before a coordinate Bench of this Court that petitioner has filed cases only against Azim Prem Ji Group. Shri. Ganesh submitted that he stands by the above two submissions and urged that the same may be placed on record as they are significant and shall have some ramification. In addition to the above Shri. Ganesh submitted that after withdrawal of PIL this writ petition is not maintainable on the ground of public policy. 7 In reply Shri. Subramanian at the out set denied the submission of Shri. Ganesh that on October 1 2020 the PIL was heard for about 50 minutes and that he had offered to withdraw when it was expressed that PIL would be dismissed with exemplary cost. Shri. Subramanian submitted that this writ petition is maintainable independent of dismissal of PIL. Adverting to Section 44 of the Prevention of Money Laundering Act 2002( PML Act for short) Shri. Subramanian submitted that stay of trial by the Apex Court in Special Case No.69 2020 does not wipe out the offences committed by the respondents. Therefore this writ petition maintainable. 10. Shri. Subramanian further submitted that the case involves siphoning of about Rs.31342 crores and petitioner has been pursuing the matter with first respondent since one year and the first respondent has not taken any action. 8 11. With regard to submissions touching upon his propriety as petitioner s Advocate Shri. Subramanian submitted that he has been practicing as an Advocate since 2015. perused the records. I have carefully considered rival contentions and In the PIL Director of Enforcement was arrayed as respondent No.7. As recorded hereinabove petitioner had sought for a direction against respondents No. 1 to 10 therein to constitute a multi Disciplinary Team to investigate and prosecute Mr. Azim Premji and his associates. Prayer clause i) in this writ petition is for a direction against the Enforcement Directorate to register a case for offences of money laundering arising out of the scheduled offences in Special Case No.69 2020. The trial of the said case has been stayed by the Hon ble Supreme Court of India. 9 In Sakiri Vasu Vs. State of Uttar Pradesh and others2 relied upon by Shri. Nagesh the Apex Court has held that when some one has a grievance that his FIR has not been registered and he rushes to High Court with a writ petition or a petition under Section 482 Cr.P.C. High Court should not encourage this practice and ordinarily refuse to interfere in such matters and relegate the petitioner to his alternative remedy. 15. Admittedly as averred in paragraph No.20 of this writ petition petitioner has filed a petition under Section 190(1)(c) read with Section 156(3) of Code of Criminal Procedure before the Special PMLA Court. 16. This Court after considering the rival contentions and the authorities in Sarguja Transport Service Vs. State Transport Appellate Tribunal M.P.Gwalior and others3 and Sheonandan Paswan Vs. State of Bihar and others4 in W.P. No.13838 2020 filed by the petitioner herein has held 22 SCC 409 3 (1987)1 SCC 5 4 (1987)1 SCC 288 10 that the said writ petition was not maintainable on the ground of public policy. 17. The ratio in the case of Sarguja is fully applicable to the facts of this case also. In view of the above the preliminary objection raised by learned Senior Advocates for private respondents that this writ petition is not maintainable on the ground of public policy is sustained. Resultantly writ petition stands No costs. Sd JUDGE 