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2006 DIGILAW 1530 (DEL)

K. D. MATHPAL v. STATE OF DELHI

2006-09-01

KAILASH GAMBHIR, VIJENDER JAIN

body2006
KAILASH GAMBHIR, J, J. ( 1 ) -AGGRIEVED with the impugned order dated 12. 7. 2006 passed by the learned Single Judge in Writ Petition (Criminal) No. 2110/2005, the petitioner has filed the present writ appeal seeking directions for setting aside and quashing the impugned order and for directions to the respondent Nos. l to 4 to register a case against respondent Nos. 5 and 6 under Sections 441,448, 452 and 338 of the Indian Penal Code, 1860. We need not give facts in detail here, as the same are set out in the order of the learned Single Judge. Suffice to state that the petitioner seeks ouster of his son and his daughter-in-law from the premises stated to be owned by him. The petitioner has complained that he and his wife are being subjected to torture, and harassment at the hands of his son and daughter-in-law, day in and day out, and it has become unbearable for them to suffer all this. The petitioner has also complained that his son and daughter-in-law, respondent Nos. 5 and 6 herein, have no legal right to remain in possession of the property in question as they are rank trespassers. ( 2 ) THE learned Single Judge after examining the status report filed by the respondent Nos. 1 to 4 have reached to the conclusion that there are allegations and counter-allegations of harassment by the parties against each other and main reason behind this quarrel is that the petitioner wants to evict respondent Nos. 5 and 6 who are not willing to vacate the premises in their possession. The learned Single Judge has, thus, found that the dispute between the petitioner and respondent Nos. 5 and 6 is of civil nature and the appropriate remedy for the petitioner would be to approach the Civil Court for vacation of his house and not through the criminal process. ( 3 ) MR. Sunil Satyarthi, learned Counsel for the appellant has vehemently argued that clear-cut case of trespass is made out in the complaint filed by the petitioner but still the Police has not registered the FIR under Sections 441, 448, 452 and 338 of the Indian Penal Code. This argument of the petitioner is devoid of any substance as in the status report filed by the respondent Nos. This argument of the petitioner is devoid of any substance as in the status report filed by the respondent Nos. 1 to 4 it has been clearly stated that no cognizable offence was found to have been committed and the matter was just between the family members. It is also stated in the said status report that after 9/5/2005 no complaint has been received from the petitioner. However, in case, the petitioner was not satisfied with the report of the Police then he could have filed complaint under Section 190 read with Section 200 of the Code of criminal Procedure, which remedy has not been exhausted by the petitioner before invoking the writ jurisdiction of this Court. The writ remedy may not be appropriate in such like cases as is held in the case of Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. , JT 2004 (8) SC 208. It would be worthwhile to reproduce paras 13 and 14 of the said judgment which are relevant:"13. When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the code. In case the Magistrate after recording evidence finds uprima facie case, instead of issuing process to the accused, he is empowered to direct the Police concerned to investigate into offence under Chapter XII of the code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All india Institute of Medical Sciences Employees' Union (Reg.) through its president v. Union of India and Others. It was specifically observed that a writ petition in such cases is not to be entertained. 14. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. These aspects have been highlighted by this Court in All india Institute of Medical Sciences Employees' Union (Reg.) through its president v. Union of India and Others. It was specifically observed that a writ petition in such cases is not to be entertained. 14. The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application,"it is most unfortunate that for the past few years there is manifold increase in the litigation amongst the blood relations. The father who once must have derived utmost pleasure, happiness and joy taking his own small child in his lap or giving a ride on his shoulder or on his back, now feels the same child, when grows up becoming atrespasser in his house. Same may be the position with the mother who must have enjoyed every moment of her life on becoming a mother and even after the child is born in the family. Now, she also considers the same child as trespasser in the house and a subject of hatred. Why such a situation has arisen and who is responsible for this? Nobody is oblivious of the fact that with the fast deterioration in moral values in the society the children are not giving due respect to their own parents and elders to which they deserve. Parents have high hopes from their children, especially, from the sons, at the time of their advanced age. It is an irony of fate when the parents need utmost care and attention, they are neglected and discarded by their own blood. The grievance made by the petitioner in the present case may or may not be correct as there are counter-allegations made by the son and his wife as well, respondent Nos. 5 and 6 of harassment at the hands of the petitioner and the eldest son, Mr. Chander Prakash. The respondent Nos. 5 and 6 in their counter-reply have also stated that on 16. 7. 2005 he had received serious injuries on his head when a pipe blow was given by the petitioner and he was taken to Lal Bahadur Hospital, Khichripur, New Delhi. Chander Prakash. The respondent Nos. 5 and 6 in their counter-reply have also stated that on 16. 7. 2005 he had received serious injuries on his head when a pipe blow was given by the petitioner and he was taken to Lal Bahadur Hospital, Khichripur, New Delhi. It is, thus, evident that there are allegations and counter-allegations between the petitioner and his eldest son on one side and the youngest son, Shri Anil Kumar and his wife on the other side and once the criminal process starts it is bound to result in cross criminal cases amongst the members of the same family which will further create embitterness, hostility and acrimony amongst blood relations. We, thus, feel that it is the solemn duty of the Courts to see that in the ever increasing disputes amongst the family members, due care and caution is taken so that there is no misuse and abuse of process of the criminal law. The lawyers being the officers of the Court also must discharge their noble duty of putting event endeavour to dissuade such clients from launching any sort of frivolous litigation against their kith and kins or blood relatives. ( 4 ) WITH these observations, we do not feel inclined to interfere in the order passed by the learned Single Judge. The learned Single Judge has already given liberty to the petitioner to approach Civil Court for vacation of his house from respondent Nos. 5 and 6. In the status report filed by the respondent Nos. 1 to 4, it has been stated that the beat staff and the Division Officer have been directed to keep a close watch and to ensure that the petitioner is not harassed by his son and daughter-in-law. Keeping in view the old age of the petitioner and his wife, we direct the SHO concerned to personally supervise and ensure that the petitioner and his wife are in no way harassed by their son and daughter-in-law. The record of such supervision be maintained in the daily diary register of the said Police Station. With these directions, the present writ petition is disposed of. Writ Petition disposed of.