The court should not issue a writ of mandamus under Article 226 of the Constitution when there is an alternative remedy that is equally effective, beneficial, and convenient.

( 1 ) THIS is an appeal from a judgment and order of Bose J. dated 16-8-1951 dismissing an application for writs in the nature of mandamus. The appellant is at the moment being prosecuted in the Court of the Chief Presidency Magistrate of Calcutta for an offence of staying in India longer than a permit which he had been granted permitted him so to stay.

( 2 ) THE defence is that the petitioner is a subject of the Indian Republic and that he is entitled to remain in British India. Further it is said that the statute and rules under which he is being prosecuted can have no application to him whatsoever and further that they are ultra vires the Constitution of India.

( 3 ) THE petitioner therefore moved this Court under Article 226 of the Constitution for a writ or order in the nature of a mandamus calling upon the State of West Bengal not to proceed with this prosecution. The matter came before Bose J. who dismissed the petition holding that there was no force whatsoever in it. From that order the present appeal has been preferred.

( 4 ) IT appears to me that this appeal can be disposed of on a preliminary ground, namely, that this is not a case in which this Court should be asked to exercise the powers given to it under Article 226 of the Constitution because there is a remedy equally effective, beneficial and convenient open to the petitioner. As I have said, a prosecution has been launched against the petitioner in the Court of the Presidency Magistrate and it is contended that the complaint made against the petitioner discloses no offence of any kind either in fact or in law. The proceedings therefore are liable to be quashed if the petitioner could establish that they cannot lie.

( 5 ) THE proper method of moving to quash proceedings in the Court of a Magistrate is to apply to this Court under the provisions of Section 439, Criminal P. C. and such petitions are of common occurrence. They are moved before the Criminal Bench of this Court and if a Rule is issued the Bench can hear the parties and if no offence is disclosed by the facts or there is ho offence in law then this Court under Section 439, Criminal P. C. may there and then quash the whole proceedings.

( 6 ) WHAT Bose J. was asked to do was really something less than quashing the proceedings. He was asked to issue a writ calling upon the Government to refrain from further prosecuting this offence. The criminal Court could give the petitioner very much better relief if he was entitled to it, because as I have said that Bench could quash the proceedings altogether.

( 7 ) THERE can be no doubt that in England a Court would not issue a writ of mandamus if the party applying for the writ had an alternative remedy equally effective, beneficial and convenient. By the provisions of Section 45, Specific Relief Act, this Court cannot make an order under that section if the applicant for such an order had another specific and convenient remedy.

( 8 ) MR. Sachin Chaudhuri who appears on behalf of the appellant, has to concede that the remedy under Section 439, Criminal P. C. is an equally effective, beneficial and convenient remedy. In fact, as I have pointed out, it is a more effective remedy than any this Court could give under Article 226 of the Constitution. Mr. Chaudhuri however has contended that this Court is not bound by the English rule because the powers given to it under Article 226 are extremely wide. Clause (l) of Article 226 of the Constitution reads as follows:"notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate eases any Government, within whose territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purp