1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Writ Petition No.639 of 2009 Amit Dinesh Jha Petitioner Vs. The Commissioner of Police & ors. Respondents Mr.Subhash Jha i/b. M/s.Law Global for petitioner. Mrs.M.M.Deshmukh, APP for State. CORAM: B.H.MARLAPALLE & R.Y. GANOO,JJ. November 11, 2009. P.C. 1. We have heard Mr.Jha, the learned counsel for the petitioner. We have also perused the affidavit-in-reply filed by Shri Ambadas Pote, Assistant Commissioner of Police presently attached to Chatushringi Division, Pune City. In this petition filed under Article 226 of the Constitution the petitioner prays for the following substantial reliefs: (a) that this Hon’ble Court may be pleased to call for the record and proceedings concerning C.R. No. 3099/2006 of Chatushringi Police Station, Pune and / 2 or after examining the legality, validity and / or propriety of the Respondents to prosecute the Petitioner under the provisions of the MCOCA may be pleased to quash and set aside the same; (b) in the alternative but without prejudice to prayer clause (a) above, this Hon’ble Court may be pleased to hold and declare that in the facts and circumstances of the case, provisions of MCOCA cannot be pressed into service against the petitioner; (c) that this Hon’ble Court may be pleased to call for the records and proceedings concerning order dated 7.4.2007, being Exhibit-`I’ annexed herewith from the Respondent No.2 herein and after examining the legality, validity and / or propriety of according permission to press into service provisions of MCOCA be quashed and set aside.” 2. The petitioner was tried as accused no.1 in RCC No.813 of 2006 for the offence punishable under Section 379 read with Section 34 of IPC and the learned 16th Judicial Magistrate at Pune acquitted him on 26/10/2007. The petitioner was also accused no.1 in Sessions Case No.239 of 2006 for the offences punishable under Sections 302, 364(A), 201 and 120(B) read with Section 34 of IPC and while the trial of the said case was in 3 progress, an application came to be filed by the learned Additional Public Prosecutor for stay to the proceedings on the ground that the present petitioner is one of the accused in Special Case No.3 of 2007 filed under the MCOC Act and the trial has been stayed as per the order dated 5/8/2009. 3. We have also noted that the petitioner came to be released on bail on 18th February 2008 by the learned Special Judge under the MCOC Act. He had also filed an application at Exhibit 9 in MCOC Special Case No.3 of 2007 for discharge and the said application was rejected on 5th January 2008. Though the petitioner had the remedy of filing an appeal under Section 12 of the MCOC Act against the order dated 5/1/2008, he did not do so and the instant petition came to be filed on or about 12th March 2009. 4. When a statutory remedy of an appeal is available against the order dated 5/1/2008, this petition under Article 226 of the Constitution cannot be entertained and more so when the very same grounds to challenge the initiation of the proceedings under the MCOC Act can be agitated in an appeal. Though in this petition the sanction order under Section 23(2) 4 of the MCOC Act passed on 7/4/2007 is under challenge, the net effect of the prayers made in this petition is to quash the MCOC proceedings. The petitioner’s application for discharge has been rejected on 5/1/2008 and, therefore, the only remedy for the very same reliefs prayed in this petition would be to file an appeal under Section 12 of the MCOC Act against the said order refusing to discharge. 5. Hence the petition is rejected as not maintainable. This order will not prevent the petitioner from filing an appeal against the order dated 5/1/2008, as may be permissible under the MCOC Act. (R.Y.GANOO,J.) (B.H.MARLAPALLE,J.)