Bombay High Court
Kotak Mahindra Bank Ltd. (Kmbl) vs The State Of Maharashtra And Ors on 25 March, 2026
Digitally signed
2026:BHC-AS:14642
by LAXMIKANT
LAXMIKANT GOPAL (903) WP-4913.24 (JUDGMENT).DOCX
GOPAL CHANDAN
CHANDAN Date:
2026.03.26
21:17:11 +0530
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4913 OF 2024
Kotak Mahindra Bank Ltd. ]
(KMBL) A Banking Company within the ]
Meaning of the Banking Regulation Act, 1949 ]
having its registered ]
office address at 27 BKC, C-27, G Block, ]
Bandra Kurla Complex, Bandra (East) ]
Mumbai - 400051 and branch office at Kotak ]
Infinity Park, 4th Floor, Zone 2, General A.K. ]
Vaidya Marg, ]
Goregaon (East), Mumbai 400 097 ]
Through its Authorised Officer ]
Mr. Alif Mobhani ]..Petitioner.
Versus
1] The State of Maharashtra ]
A Writ to be served at the office of the
]
Government Pleader, High Court - ]
Criminal Side, Mumbai ]
]
2] The Senior Inspector of Police ]
BKC Police Station, Bandra Kurla ]
Complex, Mumbai 400 051 ]
]
3] The Commissioner of Police ]
Office of Commissioner of Police, ]
Mumbai ]..Respondents
______________________________________________________
Mr. Subhash Jha a/w Advocates Sanjay Anabhawane,
Siddharath Jha, Chetan Gogawale and Mr. Chirag Bhadra i/by
Sanajy Anabhawane for the Petitioner.
Mr. Tanveer Khan, APP for the Respondent/State.
PSI Jarag Suraj, BKC Police Station present.
______________________________________________________
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CORAM : ASHWIN D. BHOBE, J.
DATED : 25 March 2026
ORAL JUDGMENT:
1. Heard Mr. Subhash Jha, learned Advocate for the
Petitioner and Mr. Tanveer Khan, learned APP for the
Respondent/State.
2. This petition filed under Article 226 of the Constitution
of India read with Section 482 of the Criminal Procedure
Code challenges the order passed by the Judicial Magistrate
First Class, Court No. 71, Bandra, Mumbai (hereafter
“Magistrate”), whereby an application filed by the Petitioner
under Section 156(3) of the Code of Criminal Procedure 1973
(hereafter “Cr.P.C.”) was rejected (hereafter “impugned
order”).
3. The reliefs sought by the Petitioner in this Petition are as
follows:-
“(a) By issue of the Writ of Direction and/or Writ of
Mandamus and/or such Writ and/or order in the nature
of the Writ by exercising inherent and extra ordinary
powers of this Hon’ble Court under Article 226 of the
Constitution of India r/w Section 482 of Criminal
Procedure Code and set aside the impugned order dated
22.07.2024 passed by Ld. Judicial magistrate first class
71th court Bandra Mumbai in Misc. Case 256 of 2023 and
direct to the Respondent No.2 to take cognizance of
offences against the Accused person by registering the
FIR.
(b) Cost of this Petition be provided for
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(c) For such further and other reliefs as the nature and
circumstances of the case may require”
4. Mr. Tanveer Khan, learned APP for the
Respondent/State, raises an objection to the maintainability of
the present Petition. His objections are twofold: first, the
impugned order is a revisable order; and second, a criminal
revision application must be filed before the Sessions Court
initially. He refers to and relies upon the judgment of this
Court in the case of Bipasha Deepak Kumar V/s State of
Maharashtra and another1, wherein this Court has held that
an order passed by a Magistrate under Section 156(3) of the
Cr. P. C. is a final order, against which a criminal revision
application is maintainable under Section 397 of the Cr. P. C.
(438 of the BNSS). He submits that the facts in the case of
Bipasha Deepak Kumar (supra) are identical to those of the
Petitioner, therefore, the decision in that case is directly
applicable here.
5. Mr. Subhash Jha, learned Advocate for the Petitioner,
fairly submits that an order passed under section 156 of Cr. P.
C. is a final order because it terminates the proceeding before
the Magistrate. He does not dispute that, in the case of
Bipasha Deepak Kumar (supra), the impugned order rejected
the application filed under section 156(3) of Cr.P.C., and that
the Petitioner there had directly approached this Court
through a writ petition without first seeking the remedy of
revision before the Sessions Court.
1
Writ Petition 5022 of 2025 decided on 23rd March 2026
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6. In view of the objection raised by Mr. T. G. Khan,
learned APP, a query was posed to Mr. Subhash Jha, learned
Advocate for the Petitioner, as to whether the Petitioner would
consider filing a criminal revision application against the
impugned order in accordance with the view expressed by this
Court in the case of Bipasha Deepak Kumar (supra). If so, this
Court would exclude the time spent by the Petitioner in this
petition, as was done in the case of Bipasha Deepak Kumar
(supra). Mr. Subhash Jha, learned Advocate for the Petitioner,
respectfully declined. He submitted that he would persuade
this Court to adopt a view different from the one taken in
Bipasha Deepak Kumar (supra).
7. Mr. Subhash Jha, learned Advocate, to persuade this
Court to adopt a different view, has relied on the decisions of
the Hon’ble Supreme Court in the case of Dhariwal Tobacco
Products Limited and others Vs. State of Maharashtra and
Another2( paragraph nos. 7, 8 and 10) and Prabhu Chawla
Vs. State of Rajasthan and Another 3 (paragraph nos. 2, 3 and
5). He relies on the decision of the Hon’ble Division Bench of
this Court in the case of Mrs. Mamta Digvijay Singh Vs. State
of Maharashtra & Anr.4
8. The submissions of Mr. Subhash Jha, learned Advocate
for the Petitioner, are that the order impugned is “palpably
erroneous and perverse,” and therefore, a higher degree of
2
(2009) 2 SCC 370
3
(2016) 16 SCC 30
4
Criminal Writ Petition No.4967 of 2025 decided on 23 September 2025
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care is required from the Court. He submits that a litigant in
such a situation should not be told to seek a remedy under the
BNSS. He contends that this Court’s jurisdiction is invoked
under Section 482 of the Cr. P. C. (Section 528 of the BNSS),
and if the order is found to be legally invalid, this Court is not
barred from exercising jurisdiction under Section 482 of the
Cr. P. C. By referring to the decision of the Hon’ble Supreme
Court in the case of Lalita Kumari vs. Government of U.P. and
others5, particularly paragraph Nos. 120.1 and 120.4, he
submits that this Court should consider directing the
Respondent Authorities to explain why action has not been
taken on the complaint filed by the Petitioner. Based on their
response, appropriate action as deemed fit, and as observed
by the Hon’ble Supreme Court in paragraph No. 120.4 of
Lalita Kumari (supra), as well as potential proceedings under
the Contempt of Courts Act, 1971, should be initiated against
the officials at fault.
9. Mr. Tanveer Khan, learned APP for the
Respondent/State, submits that the criminal revision
application under Section 397 of Cr.P.C. is an efficacious
alternate remedy available to the Petitioner, wherein all the
issues raised by the Petitioner can be considered by the
Sessions Court. He submits that the Petitioner should be
relegated to exhaust the said remedy as held by this Court in
the case of Bipasha Deepak Kumar (supra).
5
2014(2) SCC 1
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10. Mr. Subhash Jha, learned Advocate for the Petitioner,
fairly submits that the impugned order can certainly be
examined by the Sessions Court under its revisional
jurisdiction. He submits that the offence in this case is an
Economic Offence, and he emphasises that this Court should
consider the legality of the impugned order in its
extraordinary jurisdiction.
11. Heard Arguments. Perused records with the assistance
of the learned Advocates.
12. Records show that the Petitioner previously approached
this Court through Criminal Writ Petition (Stamp) No. 12062
of 2023, which was disposed of on 11 th July 2023, by the
following order:-
“P.C.:
1. By this petition, the petitioner seeks the
following substantive reliefs:-
“18 …. ….
a) Issue writ of mandamus or any other
appropriate writ as deemed fit and proper by
this Hon’ble Court and Respondent No. 2 and 3
be directed to follow the mandate of Lalita
Kumari (Supra.) as well as RBI Master Circular
for wilful defaulters issued vide circular
RBI/2014-15/73 DBR No. CID.BC.57/
20.16.003/2014-15 and RBI Master Circular for
Fraud Classification and Reporting by
commercial banks and select Fls issued vide
circular RBI/DBS/2016-17/28DBS.CO.CFM.
b) Issue direction to quash the illegal preliminary
inquiry and consequent Impugned Closure
Report dated 30.05.2023.”
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2. It is not in dispute that the police after
conducting a preliminary enquiry have closed the case,
after observing that the dispute is of a civil nature. The
said report dated 30 May 2023, is on page 51 of the
aforesaid petition.
3. In this light of the matter, prayer clause ‘a’
cannot be entertained. It is open for the petitioner to file
an appropriate proceeding as maintainable in law before
the appropriate forum/court.
4. If any proceeding is filed before the appropriate
forum/court, the concerned forum/court to pass
appropriate orders thereon, in accordance with law.
5. We make it clear, that we have not gone into the
merits of the petition and as such all contentions of all
parties are kept open.
6. All concerned to act on the authenticated copy
of this order.”
13. Special Leave to Appeal (Crl.) No.10077/2023, filed by
the Petitioner against the order dated 11 th July 2023 was
dismissed by the Hon’ble Supreme Court by order dated 20th
August 2023, which reads as follows:-
“O R D E R
1. We are not inclined to interfere with the impugned
judgment and order passed by the High Court. The special
leave petition is dismissed accordingly.
2. Pending application(s), if any, stand disposed of.”
14. Mr. Subhash Jha, learned Advocate for the Petitioner,
submits that it is after the dismissal of the Special Leave to
Appeal (Crl.) No.10077/2023, the Petitioner resorted to
Section 156(3) of the Criminal Procedure Code.
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15. This Court, in Bipasha Deepak Kumar (supra), has
addressed the issues regarding the effect of the order passed
under Section 156(3) of the Cr. P. C. (175(3) of BNSS) and the
availability of an effective remedy for an aggrieved party to
redress its grievance. In paragraph nos. 7 to 18, this Court has
observed as follows:
“7. The Hon’ble Supreme Court in the case of Amar
Nath v. State of Haryana 6, in paragraphs 4 to 9, has
explained the concept of “interlocutory orders,” which
read as follows:
4. So far as the second plank of the view of
the learned Judge that the order of the Judicial
Magistrate in the instant case was an
interlocutory order is concerned, it is a matter
which merits serious consideration. A history
of the criminal legislation in India would
manifestly reveal that so far the Code of
Criminal Procedure is concerned both in the
1898 Code and 1955 Amendment the widest
possible powers of revision had been given to
the High Court under Sections 435 and 439 of
those Codes. The High Court could examine
the propriety of any order — whether final or
interlocutory — passed by any Subordinate
Court in a criminal matter. No limitation and
restriction on the powers of the High Court
were placed. But this Court as also the various
High Courts in India, by a long course of
decisions, confined the exercise of revisional
powers only to cases where the impugned
order suffered from any error of law or any
legal infirmity causing injustice or prejudice to
the accused or was manifestly foolish or
perverse. These restrictions were placed by the
case law, merely as a rule of prudence rather
than a rule of law and in suitable cases the
High Courts had the undoubted power to
interfere with the impugned order even on
facts. Sections 435 and 439 being identical in
the 1898 Code and 1955 Amendment insofar
as they are relevant run thus:
“435. (1) The High Court or any Sessions
6
(1977) 4 SCC 1378
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(903) WP-4913.24 (JUDGMENT).DOCXJudge or District Magistrate, or any Sub-
divisional Magistrate empowered by the State
Government in this behalf, may call for and
examine the record of any proceeding before
any inferior criminal court situate within the
local limits of its or his jurisdiction for the
purpose of satisfying itself or himself as to the
correctness, legality or propriety of any
finding, sentence or order recorded or passed,
and as to the regularity of any proceedings of
such inferior Court .
439. (1) In the case of any proceeding the
record of which has been called for by itself or
which has been reported for orders, or which
otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the
powers conferred on a Court of appeal by
Sections 423, 426, 427 and 428 or on a Court
by Section 338, and may enhance the sentence
; and, when the Judges composing the Court
of revision are equally divided in opinion, the
case shall be disposed of in manner provided
by Section 429.
(2) No order under this section shall be made
to the prejudice of the accused unless he has
had an opportunity of being heard either
personally or by pleader in his own defence.”
In fact the only rider that was put under
Section 439 was that where the Court
enhanced the sentence the accused had to be
given an opportunity of being heard.
5. The concept of an interlocutory order qua
the revisional jurisdiction of the High Court,
therefore, was completely foreign to the earlier
Code. Subsequently it appears that there had
been large number of arrears and the High
Courts were flooded with revisions of all kinds
against interim or interlocutory orders which
led to enormous delay in the disposal of cases
and exploitation of the poor accused by the
affluent prosecutors. Sometimes interlocutory
orders caused harassment to the accused by
unnecessarily protracting the trials. It was in
the background of these facts that the Law
Commission dwelt on this aspect of the matter
and in the 14th and 41st Reports submitted by
the Commission which formed the basis of the
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1973 Code the said Commission suggested
revolutionary changes to be made in the
powers of the High Courts. The
recommendations of the Commission were
examined carefully by the Government,
keeping in view, the following basic
considerations :
“(i) an accused person should get a fair trial in
accordance with the accepted principles of
natural justice ;
(ii) every effort should be made to avoid delay
in investigation and trial which is harmful not
only to the individuals involved but also to
society ; and
(iii) the procedure should not be complicated
and should, to the utmost extent possible,
ensure fair deal to the poorer sections of the
community.”
This is clearly mentioned in the Statement of
Objects and Reasons accompanying the 1973
Code. Clause (d) of para 5 of the Statement of
Objects and Reasons runs thus :
“the powers of revision against interlocutory
orders are being taken away, as it has been
found to be one of the main contributing
factors in the delay or disposal of criminal
cases ; ”
Similarly, replying to the debate in the Lok
Sabha on sub-clause (2) of clause 397, Shri
Ram Niwas Mirdha, the Minister concerned,
observed as follows :
“It was stated before the Select Committee that
a large number of appeals against
interlocutory orders are filed with the result
that the appeals got delayed considerably.
Some of the more notorious cases concern big
business persons. So, this new provision was
also welcomed by most of the witnesses as
well as the Select Committee. . . . This was a
well-thought out measure so we do not want
to delete it.”
Thus it would appear that Section 397(2) was
incorporated in the 1973 Code with the
avowed purpose of cutting out delays and
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ensuring that the accused persons got a fair
trial without much delay and the procedure
was not made complicated. Thus the
paramount object in inserting this new
provision of sub-section (2) of Section 397 was
to safeguard the interest of the accused.
6. Let us now proceed to interpret the
provisions of Section 397 against the historical
background of these facts. Sub-section (2) of
Section 397 of the 1973 Code may be
extracted thus :
“The powers of revision conferred by sub-
section (1) shall not be exercised in relation to
any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.”
The main question which falls for
determination in this appeal is as to what is
the connotation of the term “interlocutory
order” as appearing in sub-section (2) of
Section 397 which bars any revision of such an
order by the High Court. The term
“interlocutory order” is a term of well-known
legal significance and does not present any
serious difficulty. It has been used in various
statutes including the Code of Civil Procedure,
Letters Patent of the High Courts and other
like statutes. In Webster’s New World
Dictionary “interlocutory” has been defined as
an order other than final decision. Decided
cases have laid down that interlocutory orders
to be appealable must be those which decide
the rights and liabilities of the parties
concerning a particular aspect. It seems to us
that the term “interlocutory order” in Section
397(2) of the 1973 Code has been used in a
restricted sense and not in any broad or artistic
sense. It merely denotes orders of a purely
interim or temporary nature which do not
decide or touch the important rights or the
liabilities of the parties. Any order which
substantially affects the right of the accused, or
decides certain rights of the parties cannot be
said to be an interlocutory order so as to bar a
revison to the High Court against that order,
because that would be against the very object
which formed the basis for insertion of this
particular provision in Section 397 of the 1973
Code. Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for
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bail, calling for reports and such other steps in
aid of the pending proceeding, may no doubt
amount to interlocutory orders against which
no revision would lie under Section 397(2) of
the 1973 Code. But orders which are matters
of moment and which affect or adjudicate the
rights of the accused or a particular aspect of
the trial cannot be said to be interlocutory
order so as to be outside the purview of the
revisional jurisdiction of the High Court.
7. In Central Bank of India v. Gokal Chand
[AIR 1967 SC 799, 800 : (1967) 1 SCR 310 :
(1967) 2 SCJ 828] , this Court while
describing the incidents of an interlocutory
order, observed as follows :
“In the context of Section 38(1), the
words “every order of the Controller made
under this Act”, though very wide, do, not
include interlocutory orders, which are merely
procedural and do not affect the rights or
liabilities of the parties. In a pending
proceeding, the Controller, may pass many
interlocutory orders under Sections 36 and 37,
such as orders regarding the summoning of
witnesses, discovery, production and
inspection of documents, issue of a
commission for examination of witnesses,
inspection of premises, fixing a date of hearing
and the admissibility of a document or the
relevancy of a question. All these interlocutory
orders are steps taken towards the final
adjudication and for assisting the parties in the
prosecution of their case in the pending
proceeding they regulate the procedure only
and do not affect any right or liability of the
parties.
The aforesaid decision clearly illustrates the
nature and incidents of an interlocutory order
and the incidents given by this Court
constitute sufficient guidelines to interpret the
connotation of the words “interlocutory order”
as appearing in sub-section (2) of Section 397
of the 1973 Code.
8. Similarly in a later case in Mohan Lal
Magan Lal Thacker v. State of Gujarat [AIR
1968 SC 733 : (1968) 2 SCR 685 : 1968 Cri LJ
876] , this Court pointed out that the finality
of an order could not be judged by co-relating
that order with the controversy in the
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complaint. The fact that the controversy still
remained alive was irrelevant. In that case this
Court held that even though it was an
interlocutory order, the order was a final order.
9. Similarly in Baldevdas v. Filmistan
Distributors (India) (P) Ltd. [(1969) 2 SCC
201 : AIR 1970 SC 406] while interpreting the
import of the words “case decided” appearing
in Section 115 of the Code of Civil Procedure,
this Court observed as follows :
“A case may be said to be decided, if the Court
adjudicates for the purposes of the suit some
right or obligation of the parties in
controversy; Apart from this it would appear
that under the various provisions of the Letters
Patent of the High Courts in India, an appeal
lies to a Division Bench from an order passed
by a Single Judge and some High Courts have
held that even though the order may appear to
be an interlocutory one where it does decide
one of the aspects of the rights of the parties it
is appealable. For instance, an order of a
Single Judge granting a temporary injunction
was held by a Full Bench of Allahabad High
Court in Standard Glass Beads Factory v. Shri
Dhar [AIR 1960 All 692 : 1960 All LJ 387] as
not being an interlocutory order having
decided some rights of the parties and was,
therefore, appealable. To the same effect are
the decisions of the Calcutta High Court in
Union of Indiav.Khetra Mohan Banerjee[AIR
1960 Cal 190] , of the Lahore High Court
inGokal Chand v. Sanwal Das[AIR 1920 Lah
326 : 55 IC 933 : 2 LLJ 32] , of the Delhi High
Court in Begum Aftab Zamani v. Shri Lal
Chand Khanna [AIR 1969 Delhi 85 : 71 Pun
LR (D) 75] and of the Jammu and Kashmir
High Court in Har Parshad Wall v. Naranjan
Nath Matoo [AIR 1959 J & K 139] .”
8. The impugned order dismisses the Application
filed by the Petitioner under section 175(3) of BNSS,
registered as Criminal Case No. 1781/M/2025, marking
the conclusion of the proceedings before the Magistrate.
This order is a final decision on the issue raised in
Criminal Case No. 1781/M/2025 and falls within the
scope of “case decided.”
9. The question of whether a Criminal Revision
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Application under Section 397 of Cr.P.C. against an order
under Section 156(3) of Cr.P.C. was considered by the
Hon’ble Division Benches of this Court, in the cases cited
below:-
a. In the case of B.S. Khatri (supra), in paragraph
No. 31, this Court observed as follows:
31. We have also noted above that several
efficacious alternate statutory remedies under
the Criminal Procedure Code are available to
the petitioners to challenge the order under
section 156(3). Without availing them the
petitioners have rushed before this Court,
claiming exercise of its extraordinary
jurisdiction under Article 226. In our opinion,
therefore, there is no need to exercise this
jurisdiction to quash merely the complaint and
order under section 156, Criminal Procedure
Code requiring investigation into complaint by
the police. The petitions are therefore liable to
be dismissed.
b. In the case of Narayandas s/o Hiralalji Sarda & Ors vs.
State of Maharashtra & Anr 7,in paragraph No. 15, this
Court has observed as follows:-
15. As regards tenability of the writ petition
challenging the direction of the learned
Magistrate to investigate under section 156(3)
of the Code of Criminal Procedure, it was
submitted by Mr. Dewani that such a writ
petition cannot be entertained in exercise of
the extraordinary jurisdiction of the High Court
under Articles 226 and 227 of the Constitution
of India. Mr. Dewani pointed out that the said
order is revisable and thus effective alternate
remedy is available. As such filing of writ
petition is not appropriate remedy. In support
of this submission, Mr. Dewani relied on R.S.
Khatri v. State of Maharashtra, 2004(1) Mh.L.J.
141 (Bombay), wherein the Court dealt with
the writ petition challenging the order passed
by the learned Magistrate directing the
investigation under section 156(3) of the Code
of Criminal Procedure. In the said case, it was
held by the Division Bench as under:
“We have also noted above that several
efficacious alternate statutory remedies under
the Criminal Procedure Code are available to
the petitioners to challenge the order under
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(2008) SCC OnLine Bom 78014
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petitioners have rushed before this Court,
claiming exercise of its extraordinary
jurisdiction under Article 226. In our opinion,
therefore, there is no need to exercise this
jurisdiction to quash merely the complaint and
order under section 156, Criminal Procedure
Code requiring investigation into complaint by
the police. The petitions are therefore liable to
be dismissed”.
c. In the case of Avinash v. State of Maharashtra.8
paragraph No. 15, this Court observed as follows:-
15. Insofar as the question framed by us is
concerned, we find that there is a passing
reference in paragraph no. 31 made by the
Division Bench about availability of several
efficacious alternative statutory remedies under
the Criminal Procedure Code to challenge the
order u/s 156(3). We think though it is obiter
dicta, nevertheless the same is binding on us as
we respectively agree with the said view, for
the above reasons that the order u/s 156(3) of
the Code not being an interlocutory order, but
being a final order in a proceeding u/s 156(3)
of the Code would certainly be revisable under
the revisional powers of the Sessions Court or
the High Court. The Division Bench in the case
of B.S. Khatri v. State of Maharashtra (supra),
however, clearly held that the exercise of
extraordinary jurisdiction under Article 226 of
the Constitution should not be made for
considering the challenge to order u/s 156(3)
of the Code with which again we respectfully
agree. We, however, state that the bar to
exercise extraordinary jurisdiction under Article
226 of the Constitution is the one of self-
imposed rule. We, however, hold that the order
u/s 156(3) of the Code not being an
interlocutory order, would obviously be
revisable. We thus hold that the order u/s
156(3) of the Code of Criminal Procedure,
1973, is not an interlocutory order, but is a
final order terminating the proceeding u/s
156(3) of the Code and that the revision u/s
397 or Section 401 of the Code would lie.
10. The above dicta conclude that an order passed
under section 156(3) of the Code of Criminal Procedure,
1973, is not an interlocutory order but a final order that
8
(2015) SCC OnLine Bom 5197
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terminates the proceeding under section 156(3) of the
Code, and that a Criminal Revision Application u/s 397 or
Section 401 of the Code of Criminal Procedure, 1973,
would lie.
11. It is trite that there is an essential distinction
between “maintainability” and “entertainability” of the
petition. Although there is no restriction on exercising
inherent powers in cases of abuse of court procedures or
other extraordinary circumstances, the limitation is simply
self-restraint.
12. The Hon’ble Supreme Court in the case of
Radha Krishan Industries v/s State of H.P. 9 dwelling on the
issue of rule of alternate remedy and the discretion to
entertain or not to entertain a writ, in paragraph nos. 27 to
28, has laid the following principles:-
27. The principles of law which emerge are
that:
27.1. The power under Article 226 of the
Constitution to issue writs can be exercised not
only for the enforcement of fundamental rights,
but for any other purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions
placed on the power of the High Court is where
an effective alternate remedy is available to the
aggrieved person.
27.3. Exceptions to the rule of alternate remedy
arise where : (a) the writ petition has been filed
for the enforcement of a fundamental right
protected by Part III of the Constitution; (b)
there has been a violation of the principles of
natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not
divest the High Court of its powers under
Article 226 of the Constitution in an appropriate
case though ordinarily, a writ petition should
not be entertained when an efficacious alternate
remedy is provided by law.
9
(2021) 6 SCC 771
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27.5. 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.
27.6. In cases where there are disputed
questions of fact, the High Court may decide to
decline jurisdiction in a writ petition. However,
if the High Court is objectively of the view that
the nature of the controversy requires the
exercise of its writ jurisdiction, such a view
would not readily be interfered with.
28. These principles have been consistently
upheld by this Court in Chand Ratan v. Durga
Prasad [Chand Ratan v. Durga Prasad, (2003) 5
SCC 399] , Babubhai Muljibhai Patel v. Nandlal
Khodidas Barot [Babubhai Muljibhai Patel v.
Nandlal Khodidas Barot, (1974) 2 SCC 706]
and Rajasthan SEB v. Union of India [Rajasthan
SEB v. Union of India, (2008) 5 SCC 632]
among other decisions.
13. In the present case, upon perusal of the record,
I do not find any circumstances that would impel this
Court to entertain the petition, as the Petitioner has the
availability of an effective remedy by way of a Criminal
Revision Application under Section 438 of BNSS. Having
held so, the next issue would be the forum for availing the
said Revisional remedy. The scheme of Section 438 of the
BNSS provides for concurrent jurisdiction between the
High Court and the Sessions Court to entertain a Criminal
Revision Application.
14. This Court in the case of Tejram Gaikwad vs
Sunanda Gaikwad10 in para 4 has observed as under :
4. First of all the application deserves to be
dismissed on the ground that the applicant has
not filed the criminal revision before the
Sessions Judge, having jurisdiction over the
matter. It is undoubtedly true that S. 397 of
the Code of Criminal Procedure confers
jurisdiction of revision concurrently on the
Court of Sessions as well as the High Court,
10
1995 SCC OnLine Bom 48917
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jurisdiction is conferred on two courts, the
aggrieved party should ordinarily first
approach the inferior of the two Courts unless
exceptional grounds for taking the matter
directly before the superior Court is made out.
Since the applicant has come directly to the
High Court, though he could have filed the
revision before the Sessions Judge and there
*are no exceptional reasons, the revision
application deserves to be dismissed on this
count alone. This Court does not encourage
filing of revision application under S. 397 of
the Code of Criminal Procedure directly before
this Court if it could be challenged in revision
before the Sessions Court having jurisdiction of
revision over the matter.
15. The decision of Tejram Gaiwad (supra) was
followed by this Court in the case of Shri Padmanabh
Keshav Kamat vs Shri Anup R. Kantak 11, observed as
follows:
“When the proceeding is maintainable by two
different courts, one being inferior or
subordinate to the other, then it is certainly a
question of propriety, particularly for the
superior Court, as to whether it should
entertain such a proceeding which could have
been filed in the lower Court. It is material to
note that revision is not a statutory right of a
litigant but it is a matter of discretion of the
Court having revisional jurisdiction.”
16. Decisions in the case of Tejram Gaikwad (Supra) and
Shri Padmanabh Keshav Kamat (Supra) were followed by this Court
in the case of Cerena Dsousa vs State of Maharastr & anr12
17. The Hon’ble Supreme Court in the case of Jagdeo Prasad
v/s The State of Bihar13, while considering the issue of concurrent
jurisdiction under section 438 of Cr.P.C. observed that the High
Court should always encourage exhausting an alternate/concurrent
remedy before directly interfering itself, as this approach balances
the interests of all stakeholders, first by giving the aggrieved party
a round to challenge before the High Court. Second, this approach
provides the High Court an opportunity to assess the judicial
11
(1998) SCC OnLine Bom 229
12
(2002) SCC OnLine Bom 155
13
(2025) SCC OnLine SC 2108
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perspective so applied by the Session Court in the concurrent
jurisdiction.
18. I find it appropriate to adhere to the principle
concerning concurrent jurisdiction as propounded in the above said
pronouncements.”
16. There is no quarrel with the law in the pronouncement
of the Hon’ble Supreme Court in the case of Dhariwal Tobacco
Products Limited (supra) and Prabhu Chawla (supra). The
issue in the present case is the entertainability of this petition.
17. Useful reference can be made to the pronouncement of
the Hon’ble Supreme Court in the case of Godrej Sara Lee Ltd.
vs. Excise and Taxation Officer-cum-Assessing Authority and
Ors.14 and in the case of Leelavathi N. and Ors vs. The State of
Karnataka and Ors.15 where the Hon’ble Supreme Court has
held that the “entertainability” and “maintainability” are
distinct concepts. The objection as to “maintainability” of a
petition goes to the root of the matter and if such objection
were found to be substance, the courts would be rendered
incapable of even receiving the lis for adjudication. On the
other hand, the question of “entertainability” is entirely within
the realm of the discretion of the High Court, writ remedy
being discretionary.
18. Having carefully considered the submissions of Mr.
Subash Jha, and having perused the records, I find no
circumstances, much less exceptional ones, that would require
14
2023 SCC Online SC 95
15
2025 SCC Online SC 2253
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this Court to entertain this petition, especially since the
Petitioner has an effective remedy available through a
Criminal Revision application under section 438 of BNSS. The
facts of the present case do not fall within the exceptions that
would warrant entertaining this petition.
19. In the case of Mrs. Mamta Digvijay Singh (supra), relied
upon by Mr. Subash Jha, the Hon’ble Division Bench of this
Court, in paragraph no. 9, has observed the reasons for
entertaining the petition questioning the order passed under
section 156(3) of the Code of Criminal Procedure, which are
as follows:-
“9. There is another reason to hold that this writ petition is
maintainable and the reason is that there are other prayers
made in this writ petition seeking invocation of the
extraordinary and plenary jurisdiction of this Court under
Article 226 of the Constitution. The petitioner has also
invoked the supervisory jurisdiction of this Court under
Article 227 of the Constitution. We would only indicate
that the jurisdiction under Article 226 is not fettered by
any technicality and in the appropriate cases the writ Court
must exercise its powers and jurisdiction to remedy the
situation. In view of the powers vested in this Court under
Articles 226 and 227 of the Constitution of India read with
Section 482 of the Code of Criminal Procedure, we hold
that this writ petition is maintainable.”
(“emphasis supplied”)
20. As referred to hereinabove, the only substantive prayer
in this petition is contained in prayer clause (a), which relates
to the impugned order.
21. The impugned order is a final order and, as such, is
amenable to revision under Section 438 of the BNSS.
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22. In view of the above, I am not convinced of adopting a
different perspective from that in the case of Bipasha Deepak
Kumar (supra).
23. Preliminary objections raised by Mr. T. G. Khan are
upheld.
24. Though Mr. Subhash Jha learned Advocate for the
Petitioner had declined to avail the course that was adopted
by this Court in paragraph 20 of the order in Bipasha Deepak
Kumar (supra), in the interest of justice, I deem it proper to
extend the benefit of exclusion of time spent by the Petitioner
before this Court, in the event the Petitioner avails the option
of filling a Criminal Revision Application under section 438 of
BNSS before the Sessions Court having jurisdiction.
25. Considering the impugned order was passed on 22 July
2024 and this Petition was filed on 18 August 2024 (as
mentioned on the memo of Petition), which is within the
limitation period prescribed under Section 131 of the
Limitation Act, 1963, if the Petitioner chooses to file a
criminal revision application under Section 528 of the BNSS
before the Sessions Court having jurisdiction within four
weeks from today, then the criminal revision application shall
be entertained on merits without insisting on any application
seeking condonation of delay.
26. Mr. Tanveer Khan, learned APP for the
Respondents/State, in all fairness, submits that the State will
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not raise any objection on the ground of limitation or
requirement of the Petitioner filing an application for
condonation of delay.
27. All contentions raised on merits remain open to be
contested in the criminal revision application.
28. In view of above, this Writ Petition No.4913 of 2024 is
disposed of.
(ASHWIN D. BHOBE, J.)
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