Superintendent Of Police vs. Vijayraj Surana (A-5)

1
R
Reserved on : 16.02.2024
Pronounced on : 22.04.2024


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ND
DATED THIS THE 22 DAY OF APRIL, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

WRIT PETITION No.10923 OF 2023 (GM-RES)

BETWEEN:

1 . C. GANESH NARAYAN
SON OF LATE MR. C.V.NARAYAN
AGED ABOUT 43 YEARS
NO. 44, OSBORNE ROAD
ULSOOR, BENGALURU – 560 042.

2 . VIDYA NATARAJ
WIFE OF C.GANESH NARAYAN
AGED ABOUT 41 YEARS
NO. 44, OSBORNE ROAD
ULSOOR, BENGALURU – 560 042.
... PETITIONERS

(BY SRI. SANDESH J.CHOUTA, SENIOR ADVOCATE A/W.,
SMT. KRUTIKA RAGHAVAN, ADVOCATE)

AND:

1 . STATE OF KARNATAKA
THROUGH COMMERCIAL STREET
POLICE STATION
REP. BY THE PUBLIC PROSECUTOR



2
HIGH COURT BUILDING
BENGALURU – 560 001.

2 . RAJDEEP DAS
SON OF SUDHANSU DAS
AGED ABOUT 23 YEARS
EMPLOYEE OF C.KRISHNAIAH CHETTY AND
SONS PVT. LTD.,
THE TOUCHSTONE A BLOCK
NO. 3 AND 3A MAIN GUARD CROSS ROAD
SHIVAJINAGAR, BENGALURU CITY
KARNATAKA – 560 001.
... RESPONDENTS

(BY SRI. S.A.AHMED, AAG A/W.,
SRI. MANJUNATH K., HCGP FOR R1;
SRI. D.R.RAVISHANKAR, SENIOR ADVOCATE A/W.,
SRI. MANJUNATH K. V., ADVOCATE FOR R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO CALL FOR RECORDS IN CRIME NO.0044/23
REGISTERED BY THE RESPONDENT NO. 1 AND BE PLEASED TO
QUASH THE FIR DATED 30.04.23 REGISTERED BY THE
RESPONDENT NO.1, VIDE ANNEXURE-A; QUASH THE COMPLAINT
DATED 29.04.23, VIDE ANNEXURE-B.


THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 16.02.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-



3

ORDER



The petitioners are before this Court calling in question
registration of a crime in Crime No.44 of 2023 for offences
punishable under Sections 323, 324, 341, 427, 504, 506 and 34 of
the IPC.

2. The facts, in brief, germane are as follows:-

nd
The 2 respondent who an employee of C.Krishniah Chetty &
Company Private Limited (‘the Company’ for short) is the
st
complainant. The 1 petitioner is said to be the Director of the
nd
Company and the 2 petitioner who is also the wife of the
st
1 petitioner is the employee of the Company. On 21-01-2023 it
appears that one Vinod Hayagriv files an injunction suit in
st
O.S.No.1265 of 2023 against the 1 petitioner to restrain the
petitioner from making any changes, construction of walls, partition
and other structures that restrict all round movement of people and
vehicles around the building. The concerned Court, in terms of its
order dated 28-03-2023, grants an interim injunction against all the
parties. After obtaining the interim order, the averment in the



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petition is that, on 07-04-2023 Vinod Hayagriv attempted to
construct a wall to seal the gate of the petitioners. It is thereafter,
the dispute between the two arose and appears to have gone
amiss. It is alleged that on 29-04-2023 the petitioners, when the
employees of Vinod Hayagriv attempted to interfere with the
petitioners’ property, are said to have indulged in fight both verbal
and physical as also using pepper spray. It is said to have been
used as a defence by the petitioners. Upon the said incident, the
nd
2 respondent, employee of the Company, is said to have
registered a complaint which becomes a crime in Crime No.44 of
2023. The moment the crime is registered, the petitioners are
before this Court in the subject petition.

3. Heard Sri Sandesh J.Chouta, learned senior counsel
appearing for the petitioners, Sri S.A. Ahmed, Additional Advocate
General appearing for respondent No.1 and Sri D.R. Ravishankar,
learned senior counsel appearing for respondent No.2.

4. The learned senior counsel representing the petitioners
would vehemently contend that the petitioners were forced to use
pepper spray in their defence and that is protected under Section



5
nd
100 of the IPC. They had to do so on account of the 2 respondent
and other security personnel attempted to interfere with the
nd
petitioners’ property and the 2 petitioner has injured her knee
and, therefore, the petitioners too registered a complaint which
becomes a crime in Crime No.43 of 2023. The said crime is said to
be under investigation. The following day, the impugned crime
comes to be registered. The complainant is one of the
employees/security guard who is said to have been injured by the
petitioners. Learned senior counsel would submit that if the
complaint is registered on mala fides , it must not be permitted to
be investigated into, as it would run completely contrary to law as
laid down by the Apex court in the case of STATE OF HARYANA v.
1
BHAJAN LAL .

nd
5. Per-contra, the learned senior counsel representing 2
respondent would vehemently refute the submissions of the
petitioners to contend that a clear case of ingredients of the
provisions invoked in the case at hand are made out. He would
submit that power to quash the proceedings under Section 482 of

1

1992 Supp (1) SCC 335



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the Cr.P.C. or even under Article 226 of the Constitution of India
should be sparingly used. It is his submission that right to private
defence has been misused in the case at hand, as there was no
threat or danger to the life of the petitioners, but pepper spray is
used only to cause injury to the complainant and others. He would
submit that pepper spray is a dangerous weapon which would
clearly come within the ingredients of Section 324 of the IPC.

6. In reply to the said submissions, the learned senior counsel
for the petitioners would contend that for invoking Section 341 of
the IPC, it must be proved that the complainant faced obstruction
from all direction. For invoking Section 427 of the IPC the accused
must have the intention and there must be loss or damage.
Likewise, Section 324 of the IPC should be proved by way of
demonstration of hurt being caused. None of these being present,
the learned senior counsel for petitioners would contend that the
FIR should be quashed.

7. I have given my anxious consideration to the submissions
made by the respective learned senior counsel and have perused
the material on record.



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8. The afore-narrated facts are not in dispute. They are all a
matter of record. The subsisting dispute between the two is also a
matter of record. The incident happened on 29-04-2023. The
incident narrated is that when the petitioners wanted to enter
through the gate of their property which was said to be the subject
matter of civil proceedings and grant of an injunction, altercations
between the petitioners and the security guards of Vinod Hayagriv
happen. In the altercation, the complaint is that, it turned into fists
and blows as well. Based upon the said incident, the petitioners
have registered a crime against security guards in Crime No.43 of
2023 on 29-04-2023. The impugned complaint, in fact, narrates
several instances that have happened prior to the said incident as
well. It is a detailed complaint.

9. The issue now would be, ‘whether this Court in exercise
of its jurisdiction under Article 226 of the Constitution of
India r/w Section 482 of the Cr.P.C.quash the proceedings at
the stage of crime, notwithstanding a counter case in Crime
No. 43 of 2023 being investigated into? ’



8

10. The incident is one, but the crimes are two – Crime Nos.
43 of 2023 and 44 of 2023. If crime No.43 of 2023 registered by
the petitioners is sustainable the same goes with crime No.44 of
2023, as the offences alleged are identical. The projection in the
case at hand is for the purpose of private defence, which would be
a matter of investigation or evidence as the case would be. Usage
of pepper spray is said to be for the said private defence. Pepper
spray is projected by the learned counsel for the petitioners to be
only for the purpose of defence and not used as a dangerous
weapon, for it to become an offence under Section 324 of the IPC.
Section 324 of the IPC reads as follows:

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Section 324 of the IPC directs that whoever voluntarily causes hurt
by means of any instrument for shooting, stabbing or any
instrument of weapon which is likely to cause death would be
committing the offence. Pepper spray is undoubtedly a dangerous
weapon. There is no determination by any law being laid down in
this country with regard to usage of pepper spray being dangerous
weapon. But, a Court in the United States of America in PEOPLE v.
2
SANDEL has held that noxious chemical sprays, like pepper
sprays are dangerous weapons. The Court has held as follows:
“Dangerous Instrument

The legal definition of a "dangerous instrument" is "any
instrument, article or substance . . . which, under the
circumstances in which it is used, attempted to be used or
threatened to be used, is readily capable of causing death or
other serious physical injury." (Penal Law § 10.00 [13]
[emphasis supplied].) Serious physical injury is defined as
"injury which creates a substantial risk of death, or which
causes death or serious and protracted disfigurement,
protracted impairment of health or protracted loss or
impairment of the function of any bodily organ." (Penal Law §
10.00 [10].) The focus of the statute is not on whether an
instrument, article or substance is dangerous per se but
whether the manner of use transforms the item into
something that can cause death or serious physical
injury.

It is obvious that some items are inherently
dangerous and capable of causing serious physical injury
if improperly used: an automobile (People v Diaz, 129 AD2d

2
84 N.Y.S. 3d 340 (N.Y. Sup.Ct.2018)



10
968 [4th Dept 1987]); a lead pipe (People v Jones, 196 AD2d
889 [2d Dept 1993], lv denied 82 NY2d 897 [1993]); a pistol
(People v Gamble, 135 AD3d 1078 [3d Dept 2016], lv denied 27
NY3d 997 [2016]); a red-hot barbecue fork (People v Greene,
72 AD3d 1279 [3d Dept 2010], lv denied 15 NY3d 750 [2010]);
a baseball bat (People v Johnson, 63 AD3d 470 [1st Dept 2009],
lv denied 13 NY3d 745 [2009]); a bicycle chain (People v
Hiraeta, 117 AD3d 964 [2d Dept 2014], lv denied 24 NY3d 1002
[2014]); and steel-toed boots (People v Roblee, 70 AD3d 225
[3d Dept 2009]).

But less obviously, benign objects can be "dangerous
instruments," capable of causing the requisite injuries under the
right circumstances. Examples abound: a plaster arm cast
(People v Davis, 96 AD2d 680 [3d Dept 1983]); a kitchen fork
(Matter of Monos v Monos, 123 AD3d 931 [2d Dept 2014]); a
knife handle (People v Burns, 122 AD3d 1435 [4th Dept
2014],{61 Misc 3d at 847} lv denied 26 NY3d 927 [2015]); a
frayed electrical cord (People v Woodard, 83 AD3d 1440 [4th
Dept 2011], lv denied 17 NY3d 803 [2011]); a door (People v
Parker, 62 AD3d 1195 [3d Dept 2009], lv denied 13 NY3d 704
[2009]); a piece of cloth (People v Marshall, 105 AD2d 849 [2d
Dept 1984]); hot water (People v Mableton, 17 AD3d 383 [2d
Dept 2005], lv denied 4 NY3d 888 [2005]); sneakers (People v
Lappard, 215 AD2d 245 [1st Dept 1995], lv denied 86 NY2d 737
[1995]); and a pit bull terrier (People v Mateo, 77 AD3d 1374
[4th Dept 2010], lv denied 15 NY3d 922 [2010]). [FN3]

A can of mace, pepper spray or any other noxious
chemical is something of a hybrid. The defense argues
that such a spray is sanctioned as a nonlethal weapon for
law enforcement and sold commercially for use by
civilians for self-defense, which signals it cannot be
classified as a dangerous instrument. Moreover, the
defendants contend that the way the noxious chemical
was used here, it did not cause serious physical injury,
was not capable of causing such injury and no rational
jury could have determined otherwise. The People
counter that the way the noxious chemical substance was
used here turned it into a dangerous instrument, much
the way the handle of a knife or a pair of sneakers
became dangerous instruments in the cases cited above.
They assert the focus of the statute is not on whether the



11
chemical caused serious physical injury but whether it
was used in a way that rendered it capable of doing so.

Noxious Chemical Spray: A Dangerous Instrument

Surprisingly, there appears to be no appellate authority in
New York addressing whether a noxious chemical spray—by
whatever name it is marketed—constitutes a dangerous
instrument. Two New York City criminal courts, however, have
found mace to be a dangerous instrument in the context of
whether charging it as such could survive motion to dismiss for
facial{61 Misc 3d at 848} insufficiency. In People v McCullum
(184 Misc 2d 70, 73 [2000]), the court held that "[a] cannister
of mace has the potential to do serious damage to a person. If
the mace cannister is operable, it is a dangerous instrument."
However, in McCullum the case was dismissed [3]because the *
People failed to establish a prima facie case that the can of
mace was operable at the time the defendant was arrested, as
required by Penal Law § 265.01 (2). And, in another case where
a motion to dismiss a criminal court complaint for facial
insufficiency was filed, People v Wilkerson (184 Misc 2d 949,
951-952 [2000]), it was held that allegations that the victim
who was sprayed with a noxious material suffered "redness and
swelling to the . . . face and burning and swelling to his eyes"
was sufficient to plead that the substance was a dangerous
instrument.

An Appellate Division case cited by defendant Cruz,
People v LaDuca (292 AD2d 851 [4th Dept 2002], lv
denied 98 NY2d 652 [2002]), is not on point. In LaDuca,
a deputy sheriff doused a resisting suspect with pepper
spray and in the ensuing scuffle, the substance got into
the sheriff's eyes. As a result, the suspect was charged
with assaulting a police officer in violation of Penal Law §
120.05 (3). The question arose whether the deputy
sheriff suffered sufficient injuries to support the physical
injury element of the charge. The sheriff received a
multitude of injuries in his attempt to subdue the
defendant, which in tandem with the pepper spray,
resulted in the physical injury necessary to sustain the
felony assault charge. The statute under which the
defendant in LaDuca was charged, designed to create a
unique felony crime of assault against a police officer,



12
required only that the prosecutor prove physical injury.
Accordingly, there is no holding in that case, or even dicta
for that matter, that addresses whether pepper spray
either in and of itself or in the manner it was used, could
constitute a dangerous instrument capable of causing
serious physical injury.

Accordingly, the court must look elsewhere for guidance.
In Maryland, "pepper mace" is listed as a dangerous weapon
when used "with the intent or purpose of injuring an individual
in an unlawful manner." (Md Code Ann, Crim Law § 4-101 [a]
[3] [i]; [c] [2].) In a case of first impression in that state, the
Maryland Court of Appeals in Handy v State (357 Md 685, 689-
690, 745 A2d 1107, 1108-1110 [2000]) determined that
whether pepper spray could be a dangerous weapon in a
robbery constituted a mixed question of law and fact: whether it
is possible for an{61 Misc 3d at 849} object to be used as a
deadly or dangerous weapon and whether its use constituted
such was a question of law and, in any given case, whether the
facts alleged by the state to support the allegation were proved
beyond a reasonable doubt was a question for the jury.

The defendant in Handy, like the defendants here, argued
that the pepper spray used against the victim, a postal carrier
who was sprayed in the face by the defendant who stole mail
from him, could not have been a dangerous weapon because
the victim's injuries were not protracted or permanent. But the
court ruled: "[W]hen, as a matter of law, an object or substance
can be used as a deadly or dangerous weapon, the potential for
bodily harm suffices, regardless of the extent of resulting harm
in an actual case." (357 Md at 699, 745 A2d at 1114.) [FN4]
The court determined that because the victim testified that he
was "blinded by the pepper spray for several hours and
experienced a burning sensation in his eyes," the injuries were
sufficiently serious to support the jury's findings (357 Md at
700, 745 A2d at 1115).

In Connecticut, the legal definitions of "serious physical
injury" and "dangerous instrument" are similar to, but not
exactly like, New York's (see Conn Gen Stat § 53a-3 [4], [7]).
[FN5] Thus, in State v Ovechka (292 Conn 533, 543, 975 A2d 1,
7 [2009]), which relied in part on Handy, the Supreme Court of
Connecticut held that an assault with pepper spray which



13
temporarily blinded the victim and resulted in irritated, swollen
and red eyes that had to be treated in a hospital emergency
room, constituted the severity of injury necessary "to support a
finding [by the jury] that pepper spray is a dangerous
instrument or dangerous weapon."
[4] *


Pepper spray seems to be a popular choice of
weapon in bank robberies, which may explain the many
federal court decisions on the subject. [FN6] In United
States v Neill (166 F3d 943 [9th Cir 1999], cert denied
526 US 1153 [1999]), the defendant was convicted
following a jury trial on two counts of bank robbery. On
appeal, he argued that his sentence had been improperly
enhanced for using a dangerous weapon, in his case,
pepper spray. The defendant had sprayed a loan
secretary at the target bank causing her to "cough and
choke and her eyes and nose to burn," which resulted in
a severe asthma attack (166 F3d at 949). The victim
testified that she felt "like somebody took a match and
stuck it up both sides of [her] nostrils . . . it was like I
was on fire." (Id.) The court ruled: "Because in this case,
pepper spray caused extreme pain and prolonged
impairment of a bodily organ, it satisfied the definition of
a dangerous weapon." (Id. at 950; see also United States
v Bartolotta, 153 F3d 875 [8th Cir 1998], cert denied 525
US 1093 [1999] [bank robber sprayed driver of armored
car with mace and his sentence was enhanced because of
it; Circuit Court upheld District Court's determination that
mace is a dangerous weapon because victim suffered
chemical pneumonia]; United States v Dukovich, 11 F3d
140 [11th Cir 1994], cert denied 511{61 Misc 3d at
851} US 1111 [1994] [Circuit Court upheld finding that
tear gas is a dangerous weapon capable of inflicting
death or serious bodily injury when sprayed on
employees placed on the floor during bank holdup].)

Noxious Chemical Spray: Not a Dangerous
Instrument Courts that have considered this issue have
not spoken with one voice. In Austin v State (336 So 2d
480, 481 [Fla Dist Ct App, 3d Dist 1976]) an intermediate
appellate court found the evidence did not support a jury



14
verdict of aggravated assault, but only simple assault,
where a defendant sprayed a mother in the mouth with
mace to wrest her child away from her at the behest of
the child's father, who insisted the child was wrongfully
being withheld from him. "The evidence that 'mace'
would not, under such circumstances, produce death or
serious bodily harm was uncontroverted," the court
wrote. (Id.)


The Legal Argument as Applied to the Instant Facts
The defendants assert the People did not prove beyond a
reasonable doubt that pepper spray is a dangerous
instrument because there was no evidence it "causes
protracted impairment{61 Misc 3d at 852} of health."
Further, they argue the People failed to provide any
expert testimony describing the long-lasting effects of
pepper spray on humans or attesting to whether it could
cause death or serious physical injury. In fact, the
defendants allege, the [*5]only evidence the People did
provide showed the opposite: a photo of a label on a can
of the noxious substance containing a warning describing
it as an "irritant." Additionally, they argue that Penal Law
§ 265.20 (a) (14) (a) refers to pepper spray as a " 'self-
defense spray device' . . . which is intended to produce
temporary physical discomfort or disability," thus
demonstrating that the New York Legislature recognized
this substance was not a dangerous instrument.

These victims were not standing upright, running
away or in an open field when they were sprayed with a
noxious chemical.{61 Misc 3d at 854} One was doused
in the close quarters of an elevator, another shortly
before a heavy man sat on her chest to tie her up and a
third right before a gag was shoved in her mouth. Any of
these women could have choked or suffered life-
threatening breathing injuries because of the way the
defendants used the noxious chemical spray. Viewing the
evidence in the light most favorable to the prosecution,
as the law requires, a rational trier of fact could have
found beyond a reasonable doubt that the defendants'
use of a noxious chemical spray constituted the use of a
dangerous instrument which was readily capable of



15
causing death or serious physical injury. Accordingly, the
defendants' motions pursuant to sections 290.10 and
330.30 are denied and the matter will proceed
immediately to sentencing .”


(Emphasis supplied)

11. Right to private defence, as is projected to defend the
action of the petitioners, is a matter of evidence. The Apex Court in
3
the case of RANVEER SINGH v. STATE OF M.P. has held as
follows:
“…. …. ….

8. “11. The only question which needs to be considered is
the alleged exercise of right of private defence. Section 96 IPC
provides that nothing is an offence which is done in the exercise of
the right of private defence. The section does not define the
expression ‘right of private defence’. It merely indicates that
nothing is an offence which is done in the exercise of such
right. Whether in a particular set of circumstances, a person
legitimately acted in the exercise of the right of private
defence is a question of fact to be determined on the facts
and circumstances of each case. No test in the abstract for
determining such a question can be laid down. In
determining this question of fact, the court must consider all
the surrounding circumstances. It is not necessary for the
accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the court to
consider such a plea. In a given case the court can consider
it even if the accused has not taken it, if the same is
available to be considered from the material on record.
Under Section 105 of the Evidence Act, 1872, the burden of
proof is on the accused, who sets up the plea of self-
defence, and, in the absence of proof, it is not possible for

3
(2009) 3 SCC 384



16

17

18

19

(Emphasis supplied)

12. In the light of the judgment of the Apex Court supra, the
nd
2 petitioner could not have used pepper spray as private defence,
as prima facie there was no imminent threat or danger caused to
her life. Therefore, the case at hand would require investigation in
the least. If any interference at this stage is made, it would run
foul of the judgment of the Apex Court in the case of KAPTAN
4
SINGH v. STATE OF UTTAR PRADESH wherein the Apex Court
holds as follows:

“9.1. At the outset, it is required to be noted that
in the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted

4
(2021) 9 SCC 35



20
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
judgment and order [Radhey Shyam Gupta v. State of U.P.,
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,



21

22

23

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and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed.”

(Emphasis supplied)


13. In the light of the aforesaid judgments and the facts
narrated hereinabove, the petition deserves to be rejected and is
accordingly rejected. Interim order of any kind, if subsisting shall
stand dissolved.

It is made clear that the observations made in the course of the
order are only for the purpose of consideration of the case of the
petitioners under Section 482 of the CrPC and the same would not
bind any other proceeding pending against the petitioners before
any other fora .



Sd/-
J UDGE


bkp
CT:SS