SUDHIR MISHRA Vs. STATE

JUDGEMENT

(1.) By the instant writ petition, the petitioners-the husband and the wife, in short - Sudhir and Laxmi respectively, seek issuance of a writ of Certiorari to quash two search warrant orders dated 10.04.2019 and 22.04.2019 passed by MM-02, Shahdara, Karkardooma, Delhi on an application made by the respondent No.3-Sh. Virender Singh, in short 'Virender', under Sections 97 and 98 of the Code of Criminal Procedure through the respondent No.4-an Advocate, in short 'Harish' and such other writs as may be appropriate including a direction to Virender to not to interfere in the private life of Sudhir and Laxmi by any means.

(2.) At the onset, it may be noted that the instant writ petition has come to be entertained in exercise of extraordinary jurisdiction vested with this court under Article 226 in conjunction with Article 227 of the Constitution of India, quite conscious of the fact that an alternative remedy to set aside the impugned orders in exercise of the inherent power vested with the High Court under Section 482 was equally available to the petitioners, and, possibly, Laxmi could have had recourse to Section 397 Cr.P.C. and file revision against the impugned orders. The facts attracting invocation of the extraordinary jurisdiction of this court, which shall follow, would disclose that the impugned orders of issuance of search warrant and production of Laxmi by the ld. Magistrate on an application made by Virender under Sections 97 and 98 Cr.P.C. were perverse and a consequence of blatant misuse of the process of court, which, directly affected the fundamental right of personal life and liberty of Sudhir and Laxmi enshrined under Article 21 of the Constitution of India. Writ petition coming up for hearing on the same date, when the matter was again fixed before the lower court, compounded the subject. At this stage, it may only be noted that the Constitution does not place any fetter on the exercise of extraordinary jurisdiction of the High Court as enshrined under Article 226 and it is left to the discretion of the High Court to exercise such jurisdiction and the power, as and when a situation so warrants. Suffice it would be to say, it is exercised to enforce the rule of law. Instances of tenability of a writ petition under Article 226 to quash the criminal proceedings and even conviction can be found in M/s K.L. (P) Ltd. & Ors. vs. The Municipal Commissioners of Kamarhati Municipality & Ors., 1985 CrLJ 26 and Banwarilal Agarwalla vs. The State of Bihar & Ors., 1961 AIR(SC) 849.

(3.) Factual matrix, giving rise to filing of the writ petition, can be taken note of in brief.