VARUN AGARWAL Vs. STATE AND ORS.

JUDGEMENT

(1.) By this petition, the Petitioner seeks quashing of the Kalandara under Section 107/151 Code of Criminal Procedure dated 29th July, 2010 at P.S. Connaught Place pending before the Special Executive Magistrate, Parliament Street, New Delhi, the notice dated 30th July, 2010 and the proceedings emanating therefrom.

(2.) The brief background of the case according to the Petitioner is that the Petitioner's grandfather died leaving behind substantial properties. In the suit for partition in respect of the estate left behind a decree was passed in terms of the settlement between the parties i.e. the father of the Petitioner i.e. Purshotam Sarup Aggarwal, the father of Tarun Aggarwal and the other brothers. According to the Petitioner, his father got the exclusive possession of property No. M-87 First Floor at plot No. 12, M-Block, Connaught Circus, New Delhi and M-36 ground floor in the same building with the open land behind it in the rear portion with Chhabutra in front of it in Verandah. The Petitioner's father was keeping a generator under the tin shed protected with side brick walk in the rear portion of property No. M-36. However, the Respondent No. 2 and 3 with other persons forcibly tried to encroach the rear portion of Petitioner's property from M-36. The security guard at Petitioner's property called up on the Petitioner's mobile who sent information to the police at 100 number which was recorded vide DD 13 A. Despite the fact that the Petitioners had made the complaint, the police registered a Kalandara against the Petitioner and took him into custody. The Petitioner was produced before the Magistrate on 30th April, 2010 and was released on bail.

(3.) Learned Counsel for the Petitioner states that after the incident he filed a civil suit in this Court seeking permanent injunction against the Respondent No. 2 and 3 from interfering in his peaceful possession in which interim order has been granted in favour of the Petitioner. The grievance of the Petitioner is that he has been falsely implicated in the said Kalandara and while issuing notice, the Spl. Executive Magistrate conducted no enquiry in terms of Section 116 Code of Criminal Procedure It is urged by the learned Counsel that even prior to issuance of notice, an enquiry ought to have been conducted. In the proceedings initiated under Sections 107/150 Code of Criminal Procedure the Petitioner would have had an opportunity to file a reply and place his case, however since it is a proceedings under Section 107/151 Code of Criminal Procedure no opportunity has been granted to him and hence the Kalandara and proceedings arising thereto are liable to be quashed. It is also contended that the fight between two family members cannot lead to any public tranquility. Moreover, the notice has been issued on cyclostyled proforma and thus suffers from non-application of mind.