Delhi High Court
Virag Tiwari & Anr vs State & Anr on 13 July, 2018
$~12
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 13th July, 2018
+ CRL.M.C. 4995/2015 and Crl. M.A. 17971/2015
VIRAG TIWARI & ANR ..... Petitioners
Through: Mr. Avadh Kaushik, Advocate
versus
STATE & ANR ..... Respondents
Through: Mr. Mukesh Kumar, APP for the
State with ASI Badlu Ram, PS Janak Puri
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioners are siblings to each other, both being children of
late Sh. P.N. Tiwari, the second respondent being their sister-in-law
(wife of their brother), each of them living at different floors of
property bearing no.B-1/150, Janakpuri, New Delhi-110058.
Admittedly, they are involved in a dispute with regard to the right,
title, possession and use of the property, which is subject matter of the
civil suit statedly now pending in the District Court.
2. On 20.02.2015, the second respondent had filed some complaint
against the first petitioner, it being subject matter of DD no.41B of
police station Janak Puri. On 09.06.2015, DD no.65B was recorded in
police station Janak Puri against the backdrop of complaint of the
second respondent. This led to initiation of proceedings before the
Special Executive Magistrate (West District) vide kalandara
no.77AB/15 presented on 11.08.2015 for initiation of action under
Section 107 read with Section 150 of the Code of Criminal Procedure,
1973 (Cr. PC) both against the second respondent and the petitioners,
they having been reflected in such proceedings as "first party" and
"second party" respectively.
3. It is own case of the petitioners that an inquiry report had been
submitted by the SHO, PS Janak Puri before the Special Executive
Magistrate for initiation of such preventive action, and the Special
Executive Magistrate, before proceeding further, had recorded the
statement of the investigating officer on 25.08.2015. By order dated
25.08.2015, show cause notices were issued to both parties by the
Special Executive Magistrate observing in the corresponding order
that having heard the investigating officer and recorded his statement,
he was satisfied that on the information thus received vide DD no.65B
and the facts brought before him, there were sufficient grounds to
proceed against the parties in question including the petitioners under
Sections 107, 150 Cr. PC. He directed the show cause notices to be
issued in terms of Section 107/ 111 Cr. PC and the matter to come up
before him on 08.09.2015.
4. Concededly, the petitioners, as indeed the other party, were
served with formal notices whereby they were called upon to appear
before the Special Executive Magistrate on 08.09.2015 to show cause
against the proposed action. On 08.09.2015, the petitioners were
present but the second respondent did not appear. The Special
Executive Magistrate issued bailable warrant against the second
respondent while directing the petitioners to come up with surety
bonds by 05.11.2015.
5. The present petition invoking the inherent jurisdiction of this
court under Section 482 Cr.PC was filed to challenge the legality of
the order dated 25.08.2015 praying for the proceedings under Sections
107 / 150 Cr. PC against the petitioners to be quashed, reliance being
placed on the rulings of the single Judges of this court in Asha Pant
Vs. State & Ors, Crl. M.C. 2077/2006, decided on 17.03.2008 and
Manish Chhabra Vs. State and Anr., Crl. M.C. 3605/2010, decided on
23.05.2011.
6. Having heard the learned counsel for the petitioners and having
gone through the record, this court finds the petition to be devoid of
substance. There is no parity with the cases cited at bar. No printed
form has been used in the present case. The Special Executive
Magistrate has taken care to follow the necessary procedure before
initiating action and issuing the show cause notices. He not only had
the inquiry report available to him based inter alia on the complaint
made to the Station House Officer of police station Janak Puri but also
the relevant police record submitted therewith. He took care by
recording the statement of the investigating officer. The satisfaction
recorded for initiating the process by the impugned order dated
25.08.2015 is only tentative in nature and is not a final conclusion
reached. All that was done by the said order was to issue notice to the
petitioners to appear and show cause against the proposed action.
Concededly, on the appointed date, in response to the show cause
notice, the petitioners did appear but did not submit any reply to the
show cause notice. The Special Executive Magistrate did not
conclude the inquiry on account of such default. He adjourned the
matter for further date, though issuing the necessary directions to
regulate the presence and conduct of the petitioners during the
interregnum. The attempt by the present petition is to stall the said
inquiry which ought not be permitted.
7. The petition and the application filed therewith are found to be
devoid of substance and are dismissed.
R.K.GAUBA, J.
JULY 13, 2018
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