K D MATHPAL Vs. STATE OF DELHI

JUDGEMENT

(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. 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: