IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI

(EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)

WRIT PETITION (CRL.) NO. ________ of 2024

IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONER

VERSUS
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

INDEX

S. NO. PARTICULARS PAGE NO.

1. Court Fee
2. Notice of Motion
3. Urgent Application
4. Memo of Parties
5. Synopsis and List of Dates
6. Petition under Article 226 of the Constitution of
India read with section 482 of Criminal
Procedure Code, 1973 along with the supporting
Affidavit.
7. ANNEXURE P/1:
A true copy of the criminal Complaint No. 7699
of 2018 titled as 'Srawan Kumar Singh vs. Arun
Kumar Singh & Ors.'
8. ANNEXURE P/2:

9. ANNEXURE P/2:
 10. ANNEXURE P/2:
11. VAKALATNAMA

FILED BY

Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com
 IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)
WRIT PETITION (CRL.) NO. ________ of 2024

IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONER

Versus
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

COURT FEES

FILED BY

Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
 (EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)
WRIT PETITION (CRL.) NO. ________ of 2023

IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONER

Versus
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

NOTICE OF MOTION
To,
The Standing Counsel (Criminal)
The Hon'ble Delhi High Court
New Delhi – 110003.

Respected Sir,
Take notice that the accompanying Petition will be listed before this
Hon'ble Court on ___.01.2024 and is likely to be on board before the Hon'ble
Court.

Thanking You.

FILED BY

Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)
 WRIT PETITION (CRL.) NO. ________ of 2023

IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONER

Versus
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

URGENT APPLICATION
To,
The Registrar
The Hon'ble Delhi High Court
New Delhi – 110003.

Sir,
The accompanying petition under Article 226 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure, 1973 on
behalf of the Petitioner above-named may kindly be treated as an urgent one
as interim order have been prayed for. Therefore, kindly list it urgently in
accordance with the High Court Rules, Practice and Procedure. The grounds
of urgency are. –
The urgent directions are prayed for.
Thanking You
FILED BY
Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com

IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI

(EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)
 WRIT PETITION (CRL.) NO. ________ of 2023

IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONERS

Versus
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

MEMO OF PARTIES

ARUN KUMAR SINGH

S/o Late Sh. Sideshwar Singh
R/o Village & P.O. – Chhatiana,
P.S. – Harnaut, Ward No. – 149,
District – Nalanda, Bihar. PETITIONER NO. 1

ABHISHEK KUMAR @ MONU

S/o Arun Kumar Singh
R/o Village & P.O. – Chhatiana,
P.S. – Harnaut, Ward No. – 149,
District – Nalanda, Bihar. PETITIONER NO. 2

- VERSUS -

STATE OF (NCT) OF DELHI

Through its Standing Counsel (Crl.)
Delhi High Court
New Delhi – 110003. …RESPONDENT NO. 1

SH. SRAWAN KUMAR SINGH

S/o Late Sh. Sideshwar Singh
R/o H. No. 1758, Block B,
Patli Gali, Shastri Nagar,
Delhi – 110052. … RESPONDENT NO. 2

FILED BY

Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com
IN THE HON'BLE HIGH COURT OF DELHI AT NEW DELHI
(EXTRA ORDINARY CRIMINAL WRIT JURISDICTION)
WRIT PETITION (CRL.) NO. ________ of 2023
IN THE MATTER OF. –

ARUN KUMAR SINGH & ANR. …. PETITIONER

Versus
STATE OF (NCT) OF DELHI &
ANR. …RESPONDENT

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

OF INDIA READ WITH SECTION 482 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, ON BEHALF OF THE
PETITIONERS ABOVE-NAMED, SEEKING SETTING ASIDE OF
THE SUMMON ORDER DATED 23.02.2023 PASSED BY THE
METROPOLITAN MAGISTRATE - 04, CENTRAL DISTRICT, TIS
HAZARI IN CRIMINAL COMPLAINT NO. 7699 OF 2018 TITLED AS
SRAWAN KUMAR SINGH VS. ARUN KUMAR SINGH & ORS. AND
QUASHING OF THE CONSEQUENT CRIMINAL PROCEEDINGS
EMANATING THEREOF QUA THE PETITIONERS

TO,

THE HON'BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HON'BLE
HIGH COURT OF DELHI AT NEW DELHI.

THE HUMBLE PETITION OF THE

PETITIONER NAMED ABOVE.

MOST RESPECTFULLY SHOWETH. –

1. That by way of the present Petition, the Petitioners, namely Arun

Kumar Singh ("Petitioner No. 1") and Abhishek Kumar @ Monu
 ("Petitioner No. 2") (collectively referred to as "Petitioners") seek
to invoke the jurisdiction of this Hon'ble Court under Article 226 of
the Constitution of India ("CoI") read with section 482 of the Code of
Criminal Procedure, 1973 ("CrPC") inter alia, challenging the
legality, proprietary and correctness of the Summon Order dated
23.02.2023 ("Impugned Order") passed by the Ld. Metropolitan
Magistrate - 04, Central District, Tis Hazari ("Magistrate") in
criminal Complaint case no. 7699 of 2018 titled as 'Srawan Kumar
Singh vs. Arun Kumar Singh & Ors.' ("Complaint") and the
consequent criminal proceedings emanating thereof qua the
Petitioners.

2. On 17.03.2018, the Respondent No. 2 namely Srawan Kumar Singh

("Respondent No. 2") filed the said Complaint under section 200 of
Cr.P.C. before the Ld. Magistrate Court inter alia, alleging the
following. –
(a) On 03.03.2018, the Petitioner together with the other accused
persons came to the house of the Respondent No. 2 on the
pretext of medical treatment of his son namely Abhishek Kumar
@ Monu (i.e., Accused No. 2 in the said Complaint).
(b) At midnight, all the accused persons assaulted the Complainant
and tied his hands and legs and snatched Rs. 10,000/-.
(c) The Petitioner by showing knife threatened the Complainant to
withdraw the civil case filed by the Complainant with respect to
to the land disputes which has been filed at Bihar and further
threatened to kill.
(d) That all accused persons fled in the morning at about 06:00 AM
when around 07:00 AM, one person namely Rajesh, who resides
 in a room adjacent to the room of the Complainant, untied the
complainant.
A True/Type copy of the Complaint filed by the Respondent No.
2 is annexed hereto and marked as ANENXURE-P/1.

3. On 23.02.2023, by way of the Impugned Order, the Ld. Magistrate in a

mechanical manner without assigning any reason and any application
of judicial mind was pleased to issue summon against the Petitioner
No.1 for the alleged offences under sections 323, 342, 397, 448, 506
and 34 of the Indian Penal Code ("IPC") and sections 323, 342, 392,
448, 506 and 34 of the IPC against the Petitioner No. 2.
A True copy of the Impugned Order dated 23.02.2023 is annexed
hereto and marked as ANNEXURE – P/2.

4. It is submitted that the Petitioner No. 1 is a law-abiding citizen and is

an Advocate registered with the Nalanda District Bar Association,
Bihar Sharif (Nalanda), Bihar and the Petitioner No. 2 is the son of
Petitioner No. 1. That the Petitioner No. 1 is having a criminal
antecedent and is implicated in the F.I.R. being Harnaut P.S. Case
No. 201 of 2022 dated 24.04.2022 filed basis the complaint of the
Respondent No. 2, registered for the offences under sections 341, 323,
337, 338, 354, 504, 506 and 34 of the Indian Penal Code ("I.P.C.")
That the Petitioner No. 1 is enlarged on bail in connection with the
said F.I.R.

5. That it is humbly submitted and stated that the allegations as alleged

in the said Complaint filed by the Respondent No. 2 are false and
vexatious and the Petitioners has not committed any offence as alleged
in the said Complaint and the said compliant is merely an abuse of the
process of law.
6. That without prejudice to the aforesaid submissions and in furtherance
thereof, the facts and circumstances necessary for the adjudication of
the present petitioner are briefly set out hereunder. –
(a) The genesis of the complaint filed by the Respondent no. 2 is on
account of the Title Suit being Title Suit No. 70 of 2001 filed by
the Petitioners seeking partition of the joint family property,
herein against the Respondent No. 2 and other accused persons,
before the Ld. Sub-Judge-I, Bihar Sharriff, Nalanda -Bihar.
A True/Type Copy of the Title Suit is annexed hereto and
marked as ANNEXURE-P/3.
(b) Pursuant to the filing of the above-mentioned Title Suit, the
partition of the joint family was arrived at basis the settlement
qua the parties to the suit and accordingly, a decree was passed
on 21.12.2010. It is pertinent to note that in the said partition, a
portion of Plot No. 297, 302, 300 which is equivalent to 7
decimal in which the Petitioner had got a title equivalent to 2
decimals and the Respondent no. 2 had got a title to 2 decimals.
A True/Type copy of the decree dated 21.12.2010 is annexed
hereto and marked as ANNEXURE-P/4.
(c) That the Respondent No. 2 started creating all sorts of
obstructions to the petitioners in enjoying the free title of the
property above stated property, pursuant to which the
Petitioners herein filed a complaint being Complaint No. 589
(C) of 2017 before the Ld. Chief Judicial Magistrate, Bihar
Sharriff, Nalanda. The said complaint is pending before the Ld.
CJM.
A True/Type copy of the Compliant is annexed hereto and
marked as ANNEXURE-P-5.
7. The Petitioner submits that the Impugned Order is illegal and
erroneous and is liable to be set aside. From a bare perusal of the
Impugned Order, it is evident that the same has been issued in a
mechanical manner. It is stated that criminal law has been set in
motion against the Petitioner in a casual manner without considering
the facts of the case and the applicable law, which has resulted in
grave injustice towards the Petitioner.

8. That aggrieved by the Impugned Order, impugned Criminal Compliant

and the proceedings emanating therefrom, the Petitioner has
approached this Hon'ble Court invoking its inherent jurisdiction
enshrined under Section 226 of the Constitution of India and Section
482 of the Code of Criminal Procedure, 1973, the following amongst
other grounds:
GROUNDS:

A. BECAUSE the Impugned Order does not disclose any

application of mind or reflects appreciating of facts and laws
applicable in the instant case and has been passed in a
mechanical manner.

B. BECAUSE it is fundamental principle of criminal law that a

person cannot be put to trial without any allegation of prima
facie nature being made out against him.

C. BECAUSE the issuance of the Impugned Order in a mechanical

manner has set the criminal law in motion against the
Petitioners in a casual manner which has caused grave prejudice
and miscarriage of justice qua the Petitioners.
D. BECAUSE the Impugned Order is totally illegal, improper and
contrary to the broad contours of law and is liable to be set aside
at the very threshold.

E. BECAUSE the Ld. Magistrate in its Impugned Order has failed

to record its satisfaction as regards prima facie case against the
Petitioners and the role played by the Petitioners in the alleged
incident which is sine qua non for initiating criminal against the
Petitioner. In this regard, the Hon'ble Supreme Court in
Mehmood Ul Rehman vs. Khazir Mohammad Tunda (2015)
12 SCC 420, guiding the High Courts has held the following. –

“20. The extensive reference to the case law would

clearly show that cognizance of an offence on complaint
is taken for the purpose of issuing process to the accused.
Since it is a process of taking judicial notice of certain
facts which constitute an offence, there has to be
application of mind as to whether the allegations in the
complaint, when considered along with the statements
recorded or the inquiry conducted thereon, would
constitute violation of law so as to call a person to
appear before the criminal court. It is not a mechanical
process or matter of course. As held by this Court in
Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial
Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to
set in motion the process of criminal law against a
person is a serious matter.

“21. Under Section 190(1)(b) CrPC, the Magistrate has

the advantage of a police report and under Section
190(1)(c) CrPC, he has the information or knowledge of
commission of an offence. But under Section 190(1)(a)
CrPC, he has only a complaint before him. The Code
hence specifies that “a complaint of facts which
constitute such offence”. Therefore, if the complaint, on
the face of it, does not disclose the commission of any
offence, the Magistrate shall not take cognizance under
Section 190(1)(a) CrPC. The complaint is simply to be
rejected.

“22. The steps taken by the Magistrate under Section

190(1)(a) CrPC followed by Section 204 CrPC should
reflect that the Magistrate has applied his mind to the
facts and the statements and he is satisfied that there is
ground for proceeding further in the matter by asking the
person against whom the violation of law is alleged, to
appear before the court. The satisfaction on the ground
for proceeding would mean that the facts alleged in the
complaint would constitute an offence, and when
considered along with the statements recorded, would,
prima facie, make the accused answerable before the
court. No doubt, no formal order or a speaking order is
required to be passed at that stage. The Code of Criminal
Procedure requires speaking order to be passed under
Section 203 CrPC when the complaint is dismissed and
that too the reasons need to be stated only briefly. In
other words, the Magistrate is not to act as a post office
in taking cognizance of each and every complaint filed
before him and issue process as a matter of course. There
must be sufficient indication in the order passed by the
Magistrate that he is satisfied that the allegations in the
complaint constitute an offence and when considered
along with the statements recorded and the result of
inquiry or report of investigation under Section 202
CrPC, if any, the accused is answerable before the
criminal court, there is ground for proceeding against the
accused under Section 204 CrPC, by issuing process for
appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If
there is no such indication in a case where the
Magistrate proceeds under Sections 190/204 CrPC, the
High Court under Section 482 CrPC is bound to invoke
its inherent power in order to prevent abuse of the power
of the criminal court. To be called to appear before the
criminal court as an accused is serious matter affecting
one’s dignity, self-respect and image in society. Hence,
the process of criminal court shall not be made a weapon
of harassment.
 “23. Having gone through the order passed by the
Magistrate, we are satisfied that there is no indication on
the application of mind by the learned Magistrate in
taking cognizance and issuing process to the appellants.
The contention that the application of mind has to be
inferred cannot be appreciated. The further contention
that without application of mind, the process will not be
issued cannot also be appreciated. Though no formal or
speaking or reasoned orders are required at the stage of
Sections 190/204 CrPC, there must be sufficient
indication on the application of mind by the Magistrate
to the facts constituting commission of an offence and the
statements recorded under Section 200 CrPC so as to
proceed against the offender. No doubt, the High Court is
right in holding that the veracity of the allegations is a
question of evidence. The question is not about veracity
of the allegations, but whether the respondents are
answerable at all before the criminal court. There is no
indication in that regard in the order passed by the
learned Magistrate.”

F. BECAUSE the Hon'ble Supreme Court in 'Pepsi Foody Ltd vs.

Special Judicial Magistrate (1998) 5 SCC 749', dealing with
the duty of the Ld. Magistrate while passing the summoning
order has observed that:
"Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a
matter of course. it is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the magistrate summoning the accused must
reflect that he has applied his mind to the facts of the
case and the law applicable thereto. He has to examine
the nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
 and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. Magistrate has to carefully scrutinise the
evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused."

G. BECAUSE the Hon'ble Supreme Court in 'Sunil Bharti Mittal

Vs. Central Bureau of lnvestigation (2015) 4 SCC 609',
dealing with the aspect of taking cognizance by the magistrate,
observed that:

"48. Sine Qua Non for taking cognizance of the offence is

the application of mind by the Magistrate and his
satisfaction that the allegations, if proved. Would
constitute an offence. It is, therefore. imperative that on a
complaint or on a police report. the Magistrate is bound
to consider the question as to whether the same discloses
commission of an offence and is required to form such an
opinion in this respect. When he does so and decides to
issue process, he shall be said to have taken cognizance.
At the stage of taking cognizance, the only consideration
before the Court remains to consider judiciously whether
the material on which the prosecution proposes to
 prosecute the accused brings out a prima facie case or
not."

H. BECAUSE the Respondent No. 2 filed the instant Complaint

before the Ld. Magistrate on account of the alleged pendency of
the civil cases. However, no civil case is filed by the
Respondent No. 2 on account of which the alleged incident had
transpired. That it is the complaint of the Petitioner No. 1 being
Complaint No. 589 (C) of 2017 which is pending before the Ld.
CJM and the instant complaint is been filed at the behest of the
Respondent No. 2 in an arbitrary manner out of malice. The
Supreme Court in the celebrated case of State of Haryana and
others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, has
dealt with the scope of power of High Court under Section 482
of Cr. P. C, 1973 in an elaborate manner. Para 102 and 103 of
the said judgment are relevant to the context and the same are
reproduced as under. –

“102. in the backdrop of the interpretation of the various

relevant provisions of the Code under Chapter XIV and
of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelized and
inflexible guidelines or ri9gid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised:
(1) wherein the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence
or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
or a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted
by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceedings against the accused.
(6) Where there is an express legal bar engrafted in
any of the provision of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the code or the concerned Act,
providing efficacious redress of the grievance of
the aggrieved party.
 (7) Where a criminal proceeding is manifestly
attended with malalfide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."

I. BECAUSE the Complainant in the absent of any pending civil

cases filed on his behalf also fails to disclose any nexus between
the incident and the Petitioners which took place as alleged in
the complaint and there is no act or omission on part of the
Petitioners which is even remotely connected to the commission
of the alleged offences.

J. BECAUSE the the Complainant in the absent of any pending

civil cases filed on his behalf fails to disclose existence of
'common intention' of the Petitioners vis-a-vis the other co-
accused, inasmuch 'common intention' cannot be presumed or
presupposed for the sake of convenience in the absence of any
evidence to that effect.

K. BECAUSE the Impugned Order is contrary to the procedure

established by law and is liable to be set aside.

L. BECAUSE the issuance of the Impugned Order has caused

infringement of personal liberty of the Petitioners and thus the
order is liable to be set aside.

9. The above-mentioned grounds are without prejudice to each other.

Further, the Petitioner craves liberty to raise any additional grounds
during the hearing, in addition to the grounds mentioned herein and as
may be available to it.
10. That the present petition has been filed with bonafide intent and in the
interest of justice.

PRAYERS

In view of the above-mentioned facts and circumstances, it is humbly

prayed that this Hon'ble Court may be pleased to. –

(a) Allow the present petition and set aside the Impugned Order
dated 23.02.2023 passed by the Ld. Metropolitan Magistrate,
Central district, Tis Hazari Courts in Criminal Case No. 7699 of
2018 titled as 'Srawan Kumar Singh vs. Arun Kumar Singh &
Ors.' pending before the court of Ld. Metropolitan Magistrate -
04, Central District, Tis Hazari and all other proceedings
emanating therefrom, qua the Petitioners; and/or

(b) Allow the present application subject to directions and on terms

and conditions as this Hon'ble Court may deem fit and proper;
and

(c) Pass such other order(s) or direction(s) as this Hon'ble Court

may deem fit and proper in the facts and circumstances of the
present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN

DUTY BOUND SHALL EVER PRAY.

FILED BY
 Mahak Rathee
Abhiprav Singh/Saurabh Babulkar
Counsels for the Petitioners
S-196, Panchsheel Park, New Delhi 110017
PLACE: New Delhi Mob: 9801178320
DATE: 23.01.2024 Abhiprav.Singh@gmail.com