SHASHANK SEKHAR SHAW Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The two appellants herein (original writ petitioners) were chargesheeted by the investigating authority before the jurisdictional criminal court for commission of offence under Sec. 498A of the IPC on the complaint of respondent No.4 herein on which they applied for discharge from the aforesaid charge which the criminal court did not entertain and rejected the application for discharge from the said offence and further, framed charge for offence under Sec. 498A of the IPC by order dtd. 5/5/2022. The two writ appellants unsuccessfully challenged the order rejecting their discharge application and the order framing charge for the offence as well as the first information report (FIR) and the charge-sheet by filing writ petition (criminal) before this Court. The learned Single Judge, however, declined to entertain the writ petition holding that the writ appellants herein have failed to make out a case for interference in the charge-sheet / order framing charge and consequently, dismissed the writ petition. The two appellants have called in question legality, validity and correctness of the order passed by the learned Single Judge declining to exercise the jurisdiction and thereby dismissing their writ petition (criminal) on the ground that the principles of law laid down by the Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others,1992 Supp (1) SCC 335. have not been followed in its letter and spirit and therefore the order impugned deserves to be set aside.

(2.) When the matter was taken-up for hearing, learned counsel appearing for the State / respondents No.1 to 3 and learned counsel appearing for respondent No.4 would submit that since the writ petition was basically filed against the judicial order passed by the criminal court declining to entertain the application for discharge and further, against the order framing charge for offence under Sec. 498A of the IPC, therefore, this order would be a basically judicial order and the writ petition would be under Article 227 of the Constitution of India and thus, the instant writ appeal filed by virtue of the proviso appended to Sec. 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (for short, "the Act of 2006') would be barred and as such, the writ appeal deserves to be dismissed to which learned counsel appearing for the appellants would submit, in reply, that the writ appellants in addition to questioning the order declining to discharge them and the order framing charge, have also assailed legality and validity of the FIR and the charge-sheet and therefore the writ petition was essentially a writ petition under Article 226 of the Constitution of India and as such, writ appeal by virtue of Sec. 2(1) of the Act of 2006 would be maintainable and therefore the writ appeal be heard on merits.

(3.) We have heard learned counsel for the parties on the question of maintainability of writ appeal and considered their rival submissions made herein-above and also went through the record with utmost circumspection.