9911796707
TMI Blog2009 (5) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Directors, the same, in our opinion, would not be sufficient to fasten any 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough 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 furthermor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
