Keki Hormusji Gharda
& Ors. Vs. Mehervan Rustom Irani & ANR.  INSC 1049 (13 May 2009)
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
S.B. SINHA, J.
respondent is a practising advocate. He is a resident of Gharda Villa, 1st
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 2 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.
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 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withdrawn on 21.5.1999.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 filed before the Additional Chief Metropolitan Magistrate, 9th
Court, Bandra in that case. However, after one month the first respondent again
filed a private complaint before the Additional Chief Metropolitan Magistrate,
9th 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:
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 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."
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, 5 "the
IPC") was taken. Appellants were summoned as accused by an order dated
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.
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.
are, thus, before us.
Complaint Petition is a detailed one. It discloses disputes between the parties
as also various proceedings initiated against the Company by the Bombay
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.
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,
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.
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 7 criminal
liability on them for commission of an offence under Section 341 of the IPC or
has been defined under Section 339 of the IPC in the following words:
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.
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."
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.
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 8 normal movement of a person. It
should be a physical one. They should have common intention to cause
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
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 9 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.
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
In Pepsi Foods Ltd.
& Anr. vs. Special Judicial Magistrate & ors. (1998) 5 SCC 749, this
Court held as under:
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 10
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
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.
is, therefore, really difficult to appreciate as to on what basis the Complaint
Petition was filed.
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