Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. ________OF 2009
[Arising out of S.L.P. (Criminal) No. 4653 of 2005]
KEKI HORMUSJI GHARDA & ORS. … APPELLANTS
Versus
MEHERVAN RUSTOM IRANI & ANR. … RESPONDENTS
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. First respondent is a practising advocate. He is a resident of Gharda
st
Villa, 1 Floor, situated at 48, Hill Road, Bandra (West), Mumbai.
M/s Gharda Chemicals Limited is a deemed public limited company
registered and incorporated under the Companies Act, 1956. It has its
registered office at 5/6, Jer Mansion, First Floor, W.P. Varde Marg, Tuner
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Road, Bandra (West) in the town of Mumbai. Appellant No. 1 (Accused No.
1) is the Chairman cum Managing Director of the said Company. Appellants
2 to 5 are the Directors thereof and the Appellant No. 6 is an Architect. It is
stated that Appellants 1 and 3 are no longer associated with the Company.
Gharda Villa, in which the first respondent resides and the premises
known as ‘Khaiber Property’ are adjacent to each other. They were said to
be belonging to Hormasji Dinshawji Gharda since deceased. The Company
is said to be the owner of the property. Gharda House being an old building
was required to be demolished and reconstructed. Several proceedings,
however, were initiated in respect of the said building by the Bombay
Municipal Corporation.
3. Father of the first respondent filed a suit in the year 1978 in his
capacity as a tenant against the predecessor-in-interest of the Company. An
application for amendment of the plaint was filed in the said suit on
17.4.1998. It is stated that the said application for amendment was
dismissed. An appeal allegedly was preferred thereagainst. An interim
relief prayed for by the first respondent in the said appeal is also said to have
been rejected. In regard to the proposed action on the part of the Company
to demolish and reconstruct the said building, the first respondent had
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initiated various proceedings. Bombay Municipal Corporation also issued a
stop-work notice dated 25.7.1998, which was said to have been withdrawn
on 21.5.1999. When repair work on the road upon removing the debris lying
on a portion of the land was started, a first information report was lodged by
the first respondent before Bandra Police Station against the officers of the
Company and the representatives of the Contractor. A charge sheet was also
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filed before the Additional Chief Metropolitan Magistrate, 9 Court, Bandra
in that case. However, after one month the first respondent again filed a
th
private complaint before the Additional Chief Metropolitan Magistrate, 9
Court, Bandra in regard to the same incident wherein not only the original
accused were made parties but also appellants were made accused Nos. 1 to
6. A verification statement was made by the first respondent on 6.8.1999,
the relevant portion whereof reads as under:
“On 06.06.1999 at about 10.00 a.m. Accused No.
8, 9 along with workers of Accused No. 11, came
on site along with road roller and dumpers, and
began putting hot sticky tar on the road Gardha
Villa, I complaint to the Bandra Police Station
Accused No. 8 was warned by the duty officer of
Bandra Police Station. To stop the work and get
the clarification from the Small Causes Court.
Though Accused No. 8 assured to stop the work,
he again, started the tarring of the access to Gardha
Villa I again went to Police Station. And
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complained against it. Accused No. 7 and 8 were
called to Police Station. And were warned that
they will booked for wrongly red trained if they
will continuing the tarring the access road.
Accused Nos. 7 and 8 assured to duty officer that
they will stop the work, when I returned from
Police Station. I found that the work was still
continuing and accused No. 8 and 10 along with
Accused No.11, were continuing the work, I
lodged my complaint at about 3:20 p.m. on
06.06.1999 and my FIR was register under C.R.
No. 257/1999 and accused Nos. 7 to 10 were
arrested for wrongful restrained U/Sec. 341 IPC,
34 IPC and was subsequently released on bail.
The driver’s of Accused No. 11 was also detained
by Bandra Police Station. At about 5:00 p.m.,
Accused No. 11 came on site and requested him to
assist him to release the driver, which I refused to
do so. Ultimately he manage to release the driver.
The access from the hill road to Gardha Villa is
only access road to Gardha Villa because of
putting hot sticky tar on the existing road on hill
road and Gardha Villa I and my brother wrongfully
restrained from going to Gardha Villa for several
hours. My aged parents who were in the house,
also restrained for going out the road. Accused
Nos. 1 to 5 manage the affairs of Gardha
Chemicals had instigated accused No. 6 to
construct the road. Hence my complaint against
accused No. 1 to 11. I am producing the copy of
the FIR lodged the Bandra P. Stn.”
4. Relying on or on the basis of the allegations made in the Complaint
Petition as also the said Verification Statement, cognizance of an offence
under Section 341 read with Section 34 of the Indian Penal Code (for short,
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“the IPC”) was taken. Appellants were summoned as accused by an order
dated 06.08.1999.
5. Before the learned Additional Chief Metropolitan an application under
Section 210 of the Code of Criminal Procedure, 1973 (for short, “the Code”)
was preferred by the first respondent since both the cases arose out of the
same incident/cause of action, which by an order dated 6.5.2004 was
allowed.
6. Appellants filed an application under Section 482 of the Code which
by reason of the impugned judgment and order dated 16.6.2005 has been
dismissed, opining that the same was grossly delayed and the allegations
made in the Complaint Petition in regard to accused Nos. 1 to 5 and 12, if
proved would amount to commission of a criminal offence. Appellants,
however, was granted liberty to raise all contentions at the trial in terms of
Section 255 of the Code.
7. Appellants are, thus, before us.
8. The Complaint Petition is a detailed one. It discloses disputes between
the parties as also various proceedings initiated against the Company by the
Bombay Municipal Corporation.
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9. Indisputably, the dispute arose in regard to construction/tarring of the
road by reason whereof, the first respondent might have faced difficulties in
ingress and egress to and from his house for a short while. However,
evidently, first respondent went to the Police Station and made a complaint
thereabout. The work was stopped for some time, but allegedly the same was
started again. Accused Nos. 7 and 8 were called to Police Station.
However, first respondent again went to Police Station to lodge a first
information report after he allegedly found that the work had been
continuing. Allegations at that point of time were confined to Accused Nos.
8, 9 and 11 at the first stage and to Accused Nos. 8, 10 and 11 at the second
stage. Accused Nos. 7 to 10 were workers of the Company. They were
arrested. They were, however, granted bail.
10. It is in the aforementioned backdrop of events, the statement made by
the first respondent that accused Nos. 1 to 5 were managing the affairs of the
Company and had instigated accused No. 6 to construct the road must be
viewed.
11. It is one thing to say that the Company had asked the accused No. 6 to
make construction but only because the accused Nos. 1 to 5 were its
Directors, the same, in our opinion, would not be sufficient to fasten any
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criminal liability on them for commission of an offence under Section 341 of
the IPC or otherwise.
‘Wrongful restraint’ has been defined under Section 339 of the IPC in
the following words:
“339. Wrongful restraing – Whoever voluntarily
obstructs any person so as to prevent that person
from proceeding in any direction in which that
person has a right to proceed, is said wrongfully to
restrain that person.
Exception.- The obstruction of a private way over
land or water which a person in good-faith believes
himself to have a lawful right to obstruct, is not an
offence within the meaning of this Section.”
The essential ingredients of the aforementioned provision are: (1)
Accused obstructs voluntarily; (2) The victim is prevented from proceeding
in any direction; (3) Such victim has every right to proceed in that direction.
12. Section 341 of the IPC provides that whoever wrongfully restrains any
person, shall be punished with simple imprisonment for a term which may
extend to one month, or with fine which may extend to five hundred rupees,
or with both. The word ‘voluntary’ is significant. It connotes that
obstruction should be direct. The obstructions must be a restriction on the
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normal movement of a person. It should be a physical one. They should
have common intention to cause obstruction.
13. Appellants herein were not at the site. They did not carry out any
work. No overt act or physical obstruction on their part has been attributed.
Only because legal proceedings were pending between the Company and the
Bombay Municipal Corporation and/or with the first respondent herein, the
same would not by itself mean that appellants were in any way concerned
with commission of a criminal offence of causing obstructions to the first
respondent and his parents. We have noticed hereinbefore that despite of
said road being under construction, the first respondent went to the Police
Station thrice. He, therefore, was not obstructed from going to Police
Station. In fact, a firm action had been taken by the authorities. The
workers were asked not to do any work on the road. We, therefore, fail to
appreciate that how, in a situation of this nature, the Managing Director and
the Directors of the Company as also the Architect can be said to have
committed an offence under Section 341 of the IPC.
14. Indian Penal Code, save and except some matters does not
contemplate any vicarious liability on the part a person. Commission of an
offence by raising a legal fiction or by creating a vicarious liability in terms
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of the provisions of a statute must be expressly stated. The Managing
Director or the Directors of the Company, thus, cannot be said to have
committed an offence only because they are holders of offices.
15. The learned Additional Chief Metropolitan Magistrate, therefore, in
our opinion, was not correct in issuing summons without taking into
consideration this aspect of the matter. The Managing Director and the
Directors of the Company should not have been summoned only because
some allegations were made against the Company.
In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & ors.
(1998) 5 SCC 749, this Court held as under:
“28. 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. The
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Magistrate has to carefully scrutinize 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.”
16. Even as regards the availability of the remedy of filing an application
for discharge, the same would not mean that although the allegations made
in the Complaint Petition even if given face value and taken to be correct in
its entirety, do not disclose an offence or it is found to be otherwise an abuse
of the process of the Court, still the High Court would refuse to exercise its
discretionary jurisdiction under Section 482 of the Code of Criminal
Procedure. Indisputably, there might have been some delay on the part of
the appellants in approaching the High Court but while adjusting equity the
High Court was required to take into consideration the fact that in a case of
this nature the appellants would face harassment although the allegations
contained in the Complaint Petition even assuming to be correct were trivial
in nature. The High Court furthermore has failed to take into consideration
the fact that in the first information report no allegation in regard to acts of
common intention or common object on the part of the appellants was made
out. Appellants were not named as accused therein.
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17. It is, therefore, really difficult to appreciate as to on what basis the
Complaint Petition was filed.
18. For the reasons aforementioned, the impugned judgment and order of
the High Court is set aside. The appeal is allowed. The order summoning the
appellant is quashed.
……………….…..………….J.
[S.B. Sinha]
..………………..……………J.
[Cyriac Joseph]
New Delhi;
May 13, 2009