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  

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

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stop-work notice dated 25.7.1998, which was said to have been withdrawn  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  

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:

“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

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