2014 ALL MR (Cri) 218
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

A.P. LAVANDE AND U.V. BAKRE, JJ.

Giridhar Deu Devsekar & Ors. Vs. State Of Goa & Ors.

Criminal Writ Petition No. 33 of 2012,Criminal Writ Petition No. 113 of 2011,Criminal Writ Petition No. 114 of 2011

24th June, 2013

Petitioner Counsel: Mr. S.G. DESSAI, Mr. PAVITHRAN A.V.
Respondent Counsel: Mr. S.R. RIVONKAR, Mr. D. LAWANDE, Mr. S. KARPE

(A) Penal Code (1860), S.97 - Right of private defence of property - Without necessity right to resort does not exist.

The need of self preservation has its root in the doctrine of necessity. The right of self defence is therefore basis of necessity and without such necessity a right to resort thereto does not exist. There are limits within which the right of private defence can be exercised. The policemen are public servants. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. Thus, when a public officer acts bona fide under colour of his office, right of private defence cannot be exercised against him though his act may not be strictly justifiable by law. [Para 24]

(B) Criminal P.C. (1973), S.228 - Penal Code (1860), Ss.307, 97 - Right of private defence of property - Exercise of against Police Officer - Dispute over access to property - Court had directed to keep three feet wide access - Work of constructing pathway under progress and policemen were present - One of the petitioners throwing koita at police causing simple bruise - Petitioner only wanted to stop work and there was no premeditation to kill policemen or any of them - Person throwing koita was directed to be proceeded against under S.324 and other petitioners for offence under Ss.353, 506 and 34 IPC. (Paras 32, 35)

Cases Cited:
State of Haryana Vs. Bhajan Lal, 2013 ALL SCR (O.C.C.) 1=1992 Supp.(1) SCC 335 [Para 13,26,27]
Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra, 2008 ALL MR (Cri) 3222 (S.C.)=(2008) 10 SCC 394 [Para 13,20]
Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., 1998 ALL MR (Cri) 144 (S.C.)=(1998) 5 SCC 749 [Para 13]
Parsuram Pandey & Ors. Vs. State of Bihar, 2005 ALL MR (Cri) 796 (S.C.)=(2004) 13 SCC 189 [Para 13,31]
Harshendra Kumar D. Vs. Rebatilata Koley & Ors., 2011 ALL MR (Cri) 955 (S.C.)=(2011) 3 SCC 351 [Para 13]
Lakshmi Singh & Ors. Vs. State of Bihar, (1976) 4 SCC 394 [Para 13]
Ravishwar Manjhi & Ors. Vs. State of Jharkhand, (2008) 16 SCC 561 [Para 13,25]
Ramchandra Shankar Deodhar Vs. State of Maharashtra, (1974) 1 SCC 317 [Para 13]
G. Sagar Suri & Anr. Vs. State of U.P. & Ors., (2000) 2 SCC 636 [Para 13,28]
State of Karnataka Vs. L. Muniswamy & Ors., (1977) 2 SCC 699 [Para 13]
Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843 [Para 14]
Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia & Anr., (1989) 1 SCC 715 [Para 14,33]
M. Narayandas Vs. State of Karnataka & Ors., 2004 ALL MR (Cri) 217 (S.C.)=(2003) 11 SCC 251 [Para 14,34]


JUDGMENT

U. V. BAKRE, J. :- Heard Mr. S. G. Dessai, learned Senior Counsel on behalf of the petitioners; Mr. S. R. Rivonkar, learned Public Prosecutor on behalf of the State of Goa; Mr. D. Lawande, learned Additional Public Prosecutor on behalf of police personnel (respondents no. 2, 3 and 4 of Writ Petition No. 33/2012) and Mr. S. Karpe, learned Counsel on behalf of Mr. Shyamsunder Hadfadkar (respondent no. 5 of Writ Petition No. 33/2012).

2. The above Writ Petitions are being deposed of by this common judgment since they are in respect of the same incident.

3. In Writ Petition No. 33 of 2012, the petitioners have prayed for Writ of Certiorari or any other writ, direction, order in the nature of Certiorari quashing and setting aside the First Information Report No. 82 of 2006 dated 22/04/2006 and charge sheet no. 41/09. The petitioners have also prayed for a Writ of Mandamus or any other writ, direction, order in the nature of Mandamus directing the respondents jointly and severally to pay adequate compensation to the petitioners. In Writ Petitions No. 113 of 2011 and 114 of 2011, the petitioners have prayed for a writ, direction or order under Article 227 of the Constitution of India, quashing and setting aside the order dated 06/06/2011 passed by Session's Court, North Goa at Panaji - Goa in Sessions Case No. 36 of 2010 and for discharging the petitioners from framing charge under Section 307 read with Section 34 of I.P.C.

4. Mr. Shyamsunder Hadfadkar, Junior Engineer, North Goa Zilla Panchayat has lodged report dated 22/04/2006, at the Mapusa Police Station, inter alia, alleging as follows :

During the month of March, 2006, they had undertaken the work of construction of pathway from the house of Ramakant Kalangutkar at Satarshet in Aldona constituency and almost 80% of the work was completed in all respects and only one strip of pathway leading to the house of Ramakant Kalangutkar was remaining. This pathway runs between the existing compound wall of Mr. Giridhar Devsekar and Mr. Santan Fernandes. On 22/4/2006 at around 09.00 hours, they started the work of construction of the said pathway and the complainant alongwith Zilla Panchayat member by name Shri Freddy Fernandes and Material Supplier by name Arjun Aroskar along with labourers were present at the site. At that time, wife of Mr. Giridhar Devsekar along with her two sons and one daughter came there and started quarreling with them and stopped the ongoing work and threatened them with dire consequences. Mr. Shyamsundar Hadfadkar then contacted Mapusa Police Station and requested for police assistance as there was likelihood of law and order problem. Mapusa Police headed by P.S.I. Prajyot Fadte and lady Police Constable and Constables came to the spot after which the wife and daughter of Giridhar Devsekar started giving bad words to the police and to all of them and the daughter of Giridhar Devsekar came with one wooden danda and opposed the work. Since the situation was going out of control more police force was requested and P. I. Mr. C. L. Patil and LPSI Devyani Ambekar along with two constables came to the spot. The Police Inspector requested both the parties to show the property documents and at that time one of the sons of Giridhar Devsekar went inside the house and came out with a camera and koita and all these four persons started quarreling with police and with the complainant and others and the women slapped and kicked some of the police persons and the boy who was carrying koita threw the same in their direction which hit a Police Constable and luckily only his pant was torn. Thereafter, the police arrested all the persons except the boy who threw the koita since he ran away from the spot. On inquiries, the names of the said four persons were known as (1) Smt. Laxmi w/o. Giridhar Devsekar (2) Kum. Vrinda d/o. Giridhar Devsekar (3) Mr. Vikram s/o. Giridhar Devsekar and (4) Mr. Ravi s/o. Giridhar Devsekar. It was Ravi Devsekar who has ran away from the scene after throwing koita at them.

5. Upon the above report, F.I.R. No. 82/2006 came to be registered at Mapusa Police Station, for offence punishable under Sections 307, 353, 506(ii), 152 and 504 r/w Section 34 of I.P.C.. Investigation was carried out. Statement of various witnesses were recorded. The injured policemen were referred to the hospital. The koita was attached. Upon completion of the investigation, charge Sheet No. 41/2009 was filed in the Court of Judicial Magistrate, First Class, Mapusa, against the petitioners for offences punishable under Sections 307, 353, 506(ii) and 504 read with Section 34 of I.P.C. This charge Sheet came to be registered as Criminal Case No. 85/S/2009/E.

6. Since the offence punishable under Section 307 of I.P.C. was exclusively triable by the Court of Session, by order dated 30/9/2010, the learned J.M.F.C., Mapusa committed the case to the Sessions Court, North Goa. The case was registered as Sessions case No. 36/2010. The learned Session's Judge, North Goa, Panaji heard both the parties and held that there is no material for framing charge under Section 504 of I.P.C., against any of the petitioners. She held that the material on record reveals that there is prima facie material to frame charge against accused no. 3-Vikram and accused no. 4-Ravi (the petitioners of Writ Petitions No. 113 of 2011 and 114 of 2011) for offences punishable under Sections 307, 353 and 356(ii) read with Section 34 of I.P.C.. It was held that the offence under 307 of I.P.C. has not been made out against accused no.1-Laxmi and accused no.2-Vrunda and therefore they are entitled to an order of discharge from the proceedings. The learned Sessions Judge, however, added that the State shall be at liberty to proceed against said Laxmi and Vrunda for committing offences punishable under Sections 353 and 506(ii) read with Section 34 of I.P.C., before the J.M.F.C. , Mapusa.

7. Accordingly, in Sessions Case no. 36 of 2010, charge has been framed against the petitioners namely Vikram and Ravi for offences punishable under Sections 353, 307 and 506(ii) of I.P.C.. A separate case under C. C. No. 188/S/2011 has been filed before the J.M.F.C. (E) Court at Mapusa against the petitioners namely Laxmi and Vrunda for offences punishable under Sections 353 and 506(ii) read with Section 34 of I.P.C..

8. Case of the petitioners, in short, is as follows:

Mr. Giridhar Devsekar has purchased a property bearing survey no. 15/20, by Sale Deed dated 02/06/1987, situated at Aldona, for construction of house. Mr. Giridhar completed construction of house in the said plot, in the year 1995. There is no access available, as a matter of right to anyone, through the said plot. On 11/04/1991, Mr. Ramakant Kalangutkar, the owner of plot bearing survey no. 15/7, entered into an agreement with the owners of survey no. 15/18 situated at the Western boundary of survey no. 15/20 by which agreement Mr. Ramakant purchased easementary access of the width of one metre through eastern bordering strip of survey no. 15/18, to go to the property bearing survey no. 15/7 situated on the northern boundary of survey no. 15/18. In survey no. 15/7, Ramakant had already constructed a house prior to the year 1991. The said survey no. 15/7 is situated at some distance on the north-western side of Survey no. 15/20, intervened by survey no. 15/19 in between. On 29/04/1994, Mr. Giridhar Devsekar obtained construction license for construction of compound wall around the house constructed by him in survey no. 15/20 between 1991 to 1995. In the year 1995, Ramakant Kalangutkar started obstructing construction of compound wall on the western boundary of survey no. 15/20 and claiming one metre wide access on the western boundary stretch of survey no. 15/20, which never existed. Mr. Giridhar Devsekar lodged complaint dated 12/01/1995 against Ramakant at Aldona Police Outpost. On 13/01/1995 Mr. Devsekar made a complaint to Mapusa Police Station and also Aldona Police Outpost against Ramakant. Again on 14/5/1995 and on 15/05/1995, Mr. Devsekar lodged complaints against Ramakant at Aldona Police Outpost. On 18/05/1995, Mr. Devsekar filed application before the Mamlatdar of Mapusa claiming police protection against Ramakant and for constructing the compound wall. On 11/03/1996, Mr. Giridhar Devsekar filed Regular Civil Suit No. 31/96 against the said Ramakant Kalangutkar and his wife in order to restrain them from interfering with the construction of the compound wall. By Decree dated 01/12/2003, the said Regular Civil Suit No. 31/1996 was decreed and the petitioners were permitted to construct the compound wall after leaving one metre wide access on survey no. 15/20. Mr. Devsekar filed Regular Civil Appeal No. 225/2003 challenging the decree dated 01/12/2003 to the extent of permitting the construction of compound wall by leaving one metre wide access on the Western boundary. On 26/05/2005, North Goa Zilla Panchayat member by name Freddy Fernandes proposed various constructions of compound wall near the house of Ramakant Kalangutkar declaring that the work is on public place and for benefit of members of public. On the same day the Standing Committee of North Goa Zilla Panchayat resolved that construction of pathway near the house of Ramakant be done under Sanjay Gandhi Rojgaar Yojana (SGRY). By judgment dated 17/06/2005, Regular Civil appeal No. 225/03 was allowed and condition of one metre wide access on the western side of survey No. 15/20 was set aside and Ramakant Kalangutkar and his wife were restrained from interfering with the construction of compound wall on the western side. Ramakant and his wife, however, filed the Second Appeal No. 95 of 2005 against the said order, which has been admitted on 01/09/2005 and the operation of the decree dated 17/06/2005 of the First Appellate Court has been stayed by maintaining the direction given by the Trial Court in the Decree dated 01/12/2003. Therefore, the petitioners were permitted to construct the compound wall after leaving one metre wide space on the Western boundary of their property. However, that does not entitle anyone to assume that one metre wide pathway is available for public use or for constructing pathway within the said space of one metre width.

9. Further the case of the petitioners is as follows:-On 28/09/2005 the District Rural Development Agency (DRDA) conveyed its administrative approval for the work of construction of pathway near Ramakant's house at an estimated cost of Rs. 1,94,810/- inter alia, under condition that ownership documents of the property and proper N.O.C. from the owner be obtained before the commencement of the work and that such N.O.C. should be irrevocable and should be in the affidavit form on Rs. 20/- stamp paper to be registered before Notary/Executive Magistrate. Therefore, it was necessary and mandatory to obtain N.O.C. from the petitioners, authorising construction of pathway through the said one metre wide space permitted by the Trial Court, before commencing the construction of pathway through the property and anyone commencing work in the property, without such N.O.C. shall be guilty of criminal trespass thereby giving legal right to the petitioner to obstruct such work by way of right of private defence to the property which constitutes no offence in terms of Sections 96 and 97 of I.P.C. On 08/04/2006 that is on a second Saturday and a holiday, at about 11.00 a.m., Zilla Panchayat member Freddy Fernandes came to survey no. 15/20 with contractor by name Arjun Aroskar and two police constables one by name Bhagat and instructed the contractor to start the work but was obstructed by one of the petitioners namely Vrunda. At that time, the other petitioners were abused and the stones which were brought were kept in the near-by property with an intention to start the work. On 10/04/2006, Mr. Giridhar Devsekar filed appeal under Sections 177, 178 and 201-A of the Goa Panchayat Raj Act, 1994 against the local Village Panchayat, Zilla Panchayat and the contractor namely Arjun Aroskar for restraining them from constructing the access through survey no. 15/20. On 12/04/2006, Mr. Devsekar lodged complaint with the Incharge of Mapusa Police Station against Freddy Fernandes for forcibly trying to construct access in his property and for showering filthy words. On 13/04/2006, the local Panchayat requested the Chief Officer, North Goa Zilla Panchayat to direct the contractor to stop the intended work in survey No. 15/20 in order to maintain peace and harmony amongst the neighbours.

10. It is further alleged by the petitioners that: On 22/04/2006, ten policemen, headed by P.S.I. Prajyot Phadte and Freddy Fernandes, complainant Shyamsundar Hadfadkar , Contractor Arjun Aroskar and his workers came to survey no. 15/20 and started bringing stones into the property to which the petitioners objected. In the meantime, more policemen came to the site in another police jeep. The Police Inspector Mr. Patil checked the Court papers and stated that the petitioners have not obtained any stay order from the Director of Panchayats and therefore the work can proceed. All the petitioners, except Vikram, were arrested when they insisted that work should be stopped. The said three petitioners were taken to Police Station at Mapusa and were detained and work of construction of pathway thereafter continued and was completed past midnight. Pursuant to the complaint lodged by Junior Engineer, Mr. Shyamsundar Hadfadkar, F.I.R. was registered and charge sheet was filed. The said charge sheet does not disclose offences under Sections 307, 353, 506(ii) read with Section 34 of I.P.C. The Police Officers on duty at the scene of offence were not performing any public duty much less in good faith. The said three petitioners were illegally arrested and detained at Mapusa Police Station until they were released on bail and they had not committed any cognizable offence. Section 96 of I.P.C. provides that nothing is an offence which is done in the exercise of the right of private defence and Section 97 mentions that every person has a right to defend the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. The Police Officers whose statements have been recorded are guilty of trespass into the plot belonging to the petitioners and are also guilty of misuse or abuse of police power vested in them. The respondents are guilty of illegally setting criminal law into motion. The respondents are guilty of judging their own case and carrying out unfair and one sided criminal investigation.

11. Affidavits-in-reply have been filed on behalf of the respondents in Writ Petition No. 33/2012, wherein, inter alia, it is stated as follows :

The petition is grossly barred by delay and laches. The incident complained of occurred on 22/04/2006 whereas the Writ Petition No. 33 of 2012 has been filed in the month of March, 2012. The petitioners have not filed any police complaint nor any proceedings before any other Authority. The petition raises several disputed questions of fact which cannot be decided in a petition under Article 226 of the Constitution. On 22/04/2006 at about 09.15 hours, PSI Haldankar was on "Station House Officer" duty at Mapusa Police Station and he received call regarding the ongoing work of Zilla Panchayat at Aldona which was obstructed and there was likelihood of law and order problem. On account of the same, PSI Prajyot Fadte, LHC-3473 namely Manisha Khot, LPC-4030 namely Shobha Satish Naik, PC-3991, Santosh B. Parab, PC-4094, Sanjay Kudav, PC-4440, Jeetendra B. Naik, and PC-4616, Dinesh Satelkar left for protection duty at the spot at Satarshet Aldona. At about 09.30 hours, a phone call was received from PSI Prajyot Fadte stating that two males and two females were obstructing the on-going work and creating problems, abusing the Police and had behaved violently. Hence, P.I., Chetan Patil along with other policemen went to the spot and saw that the women and men who were obstructing the work had become very violent and were absuing the police and Zilla Panchayat Engineer and other workers and one of the ladies by name Vrunda was carrying a wooden danda. Mr. Patil inquired with the said persons as to whether any Court order was passed restraining the Zilla Panchayat from carrying out any work. At that time Vikram Devsekar went inside the house and came out with a Koita and camera and all the four persons started assaulting the police and others with kicks and wooden dandas. Ravi Devsekar took koita from Vrikram Devsekar and flung it in the direction of police which was intended to hit the head of PC- 3991 namely Santosh Parab; but PC-4094 namely Sanjay Kudav tried to block the said koita with the help of his lathi and after hitting the lathi, it hit PC-4094, Sanjay Kudav on his right thigh near the private part and he sustained injuries and his pant got torn. LPC- 4030 also received a simple injury on her hand. Ravi Devsekar after having thrown the koita, ran away from the spot and the other three persons namely Laxmi alia Sunita Devsekar, Vrunda Devsekar and Vikram Devsekar were taken into custody. Shyamsunder Hadfadkar, Junior Engineer of North Goa Zilla Panchayat lodged complaint upon which LPSI Devyani Ambekar registered Crime No. 82/06 for offences punishable under Sections 307, 353, 506(ii), 504 read with Section 34 of I.P.C. In view of the above, the investigation cannot be said to be biased. The facts clearly disclose that the action taken by the Police Officers was in the course of performance of duty. After completion of investigation, charge sheet was filed against the petitioners which was registered as Criminal Case No. 85/S/09/E and the case was committed to the court of Session at Panaji and was registered as Sessions Case no. 36 of 2010. The matter was argued before charge and by order dated 06/06/2011, the Sessions Court discharged the accused Laxmi and Vrunda for offence under Section 307 of IPC and ordered that a separate charge sheet be filed against them, before J.M.F.C., Mapusa for offences under Sections 353, 504 and 506 (ii) of I.P.C. Accordingly, a separate charge sheet has been filed against the said accused persons in the Court of J.M.F.C. , Mapusa and the same is registered under No. 188/S/2011/E.

12. The petitioner namely Vrinda Devshekar has filed affidavit-in-rejoinder denying the averments made in the affidavits-in-reply.

13. Learned Senior Counsel, appearing on behalf of the petitioners, submitted that the incident of 22/04/2006 took place because the respondents wanted to do illegal work of construction in the property of the petitioners. He invited our attention to the letter dated 28/09/2005 written by the Project Director of District Rural Development Agency, North Goa to the Chief Executive Officer, North Goa Zilla Panchayat wherein it is specifically mentioned that proper N.O.C. from the owner of the property was required to be obtained before commencing all the work. He submitted that no such N.O.C. was obtained from the petitioners. He submitted that the respondents had entered the property of the petitioners without consent and therefore even if the petitioners had assaulted them, it was in the exercise of right of private defence of the property. Learned Counsel submitted that the respondents had committed offence but the petitioners could not lodge complaint as they were in custody. Learned Counsel pointed out that the police personnel were about 20 in number whereas the petitioners were only four out of which two were females. According to him prosecution launched by the State against the petitioners is malicious. Learned Counsel invited our attention to the station diary for 22/4/2006, wherein there is no mention of receipt of any phone call from the complainant Shri Shyamsundar, regarding law and order problem. He further submitted that there was no sufficient ground for filing charge sheet. He pointed out that all the statements of witnesses are stereotype recorded on one day that is on 21st April. Even otherwise, he submitted that the charge sheet does not disclose any offence and more particularly, considering the ingredients of Section 307 of IPC, the said Section was not at all attracted. He relied upon following Judgments:

(i). State of Haryana Vs. Bhajan Lal [1992 Supp.(1) SCC 335] : [2013 ALL SCR (O.C.C.) 1].

(ii). Yogesh alias Sachin Jagdish Joshi Vs. State of Maharashtra, [(2008) 10 SCC 394] : [2008 ALL MR (Cri) 3222 (S.C.)].

(iii). Pepsi Foods Ltd and another Vs. Special Judicial Magistrate and others, [(1998) 5 SCC 749] : [1998 ALL MR (Cri) 144 (S.C.)].

(iv). Parsuram Pandey and others Vs. State of Bihar, [(2004) 13 SCC 189] : [2005 ALL MR (Cri) 796 (S.C.)].

(v). Harshendra Kumar D. Vs. Rebatilata Koley and others, [(2011) 3 SCC 351] : [2011 ALL MR (Cri) 955 (S.C.)].

(vi). Lakshmi Singh and others Vs. State of Bihar, [(1976) 4 SCC 394].

(vii). Ravishwar Manjhi and others Vs. State of Jharkhand, [(2008) 16 SCC 561].

(viii). Ramchandra Shankar Deodhar Vs. State of Maharashtra, [(1974) 1 SCC 317].

(ix). G. Sagar Suri and another Vs. State of U.P. and others, [(2000) 2 SCC 636].

(x). State of Karnataka Vs. L. Muniswamy and others, [(1977) 2 SCC 699].

14. Learned Public prosecutor, on behalf of the State, submitted that entire material on record cannot be looked into for the purpose of quashing of the F.I.R. and it is only the F.I.R. which can be looked into. He submitted that the petitioners had constructed the compound wall by leaving one metre wide space and therefore it could be presumed that there was N.O.C. from them. He further submitted that on 22/04/2006 the Junior Engineer of Zilla Panchayat had gone to the spot and he had informed the police that there is disturbance at site and law and order problem. He submitted that therefore the police had gone to the spot. He pointed out that as per the F.I.R. as well as the statements of witnesses it is clear that koita was thrown in the direction of the police with an intention to hit Police Constable Buckle No. 3991 on his head but only because PC 4094 intervened and tried to block the said koita with the help of his lathi, the said koita hit said P.C. Buckle no. 4094 on his right thigh near the private part and he sustained injury and his pant was torn. The learned Public Prosecutor pointed out that during the said incident, L.P.C. 4030 had also received simple injury on her hand. He submitted that one of the female petitioners was carrying wooden danda and all had threatened the police and others with dire consequences. The learned Public Prosecutor therefore contended that the incident was of criminal nature and cannot be discarded merely because there was also a civil dispute with regard to the place at which the construction was sought to be made and by claiming right of private defence of property. The learned Public Prosecutor submitted that there are on record statements of various witnesses, hurt certificate and the recovery of the weapon and therefore there is sufficient material on record to frame the charge. He submitted that High Court should be slow in interfering with the order of framing of charge. The learned Public Prosecutor has relied upon following judgments:

(i). Sarju Prasad Vs. State of Bihar, [AIR 1965 SC 843].

(ii). Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and another [(1989) 1 SCC 715].

(iii). M. Narayandas Vs. State of Karnataka and others, [(2003) 11 SCC 251] : [2004 ALL MR (Cri) 217 (S.C.)].

15. On behalf of the police personnel (respondents no. 2, 3, and 4, in Writ petition No. 33/2012), Mr. Lawande, learned Additional Public Prosecutor submitted that there are no malafides alleged against the said police personnel and that no counter complaint has been filed by any of the petitioners. He further pointed out that allegations against the police personnel are vague and there is nothing to show as to how and why the investigation is faulty.

16. On behalf of Mr. Shyamsundar Hadfadkar, Mr. Karpe, learned Counsel submitted that the incident had occurred on 22/04/2006 but the Writ Petition No. 33 of 2012 has been filed in the year 2012 whereas the other two Writ Petitions have been filed in the year 2011 and therefore there is gross delay and laches. He submitted that the F.I.R. and the statement of witnesses provide sufficient material to prove the offences with which the petitioners have been charged. He adopted the submissions made by the learned Public Prosecutor.

17. We have gone through the entire material on record and considered the submissions made by the learned Counsel for the parties and also the judgments cited by the parties.

18. No doubt, there is a long background for the incident which occurred on 22/04/2006. The said background reveals that there is civil dispute between the petitioners and one Mr. Ramakant Kalangutkar, regarding the access. The said dispute is not yet resolved but is still pending and now in Second appeal. The learned Civil Judge Senior Division, in Regular civil Suit No. 31/1996, had directed Devsekar to leave one metre wide access on the western side of the suit property bearing survey no. 15/20. The learned First appellate court, in Regular Civil Appeal No. 225/2003, had set aside the said direction of the trial court. But in Second Appeal No. 95/2005, this Court by order dated 01/09/2005, has stayed the operation of the judgment and order of the First appellate Court and has ordered that the direction given by the trial court in the judgment and order dated 1/12/2003 shall remain operative. The Second Appeal is still pending. The Petitioners, therefore, are under obligation to reserve the access of one metre width till the disposal of the Second Appeal and there is no injunction against anyone thereby restraining him from interfering with the said space of the width of one metre. Admittedly, the petitioners have constructed the compound wall by leaving the space of one metre width. No doubt, in terms of the letter dated 28/09/2005 of the District Rural Development Agency, addressed to the Chief Executive Officer, North Goa Zilla Panchayat, N.O.C. from the owner was required to be obtained before commencement of the work of construction of pathway. The incident which occurred on 22/04/2006 does not involve said Ramakant Kalangutkar but involves police personnel.

19. The F.I.R. dated 22/04/2006 and the statement of witnesses reveal that it was the informant namely Shyamsundar Hadfadkar, the Junior Engineer of North Goa Zilla Panchayat, who had called the police at the spot saying that there was likelihood of law and order problem. In the station diary dated 22/04/2006, there is mention of PSI Fadte, HC 3476, LPC 4030, PC 4440, 3991, 4094, etc., leaving the police station for bandobast duty at Nasnora. It is true that, there is no mention that a phone call was received from Shyamsundar that there is law and order problem. But that would not prove, at this stage only, that the policemen were not called by the complainant Shri Shyamsundar, alleging that there was law and order problem. It may be that the said fact becomes a disputed fact. The said F.I.R. and the statement of witnesses further reveal that one of the petitioners was armed with wooden danda and the petitioners had started quarreling with the police; had threatened them with dire consequences and had slapped and kicked some of the police persons and one of the petitioners i.e. Vikarm had brought the koita and the other petitioner namely Ravi had thrown that koita in the direction of the police which hit a Police Constable on his right thigh near the private part and had caused simple injury to him. The records further reveal that one L.P.C. had also sustained simple injury. In this regard, besides the statement of witnesses, there are hurt certificates and the panchanama of the recovery of the said koita. At the stage of framing of charge, the trial Judge is not supposed to see whether the trial will end in conviction or not. The judge has to see whether the materials on record, if unrebutted, would warrant conviction.

20. In the case of "Yogesh alias Sachin Jagdish Joshi", [2008 ALL MR (Cri) 3222 (S.C.)] (supra) the Apex Court has held as follows :

"It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section 227 CrPC postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible."

21. It is the case of the petitioners that no N.O.C. was taken from them before the commencement of the work and that they had a right of private defence of property and that the respondents no. 2, 3 and 4 of writ Petition No. 33/2012 had committed offences of criminal trespass, house trespass, assault, mischief, outraging of modesty, wrongful restraint and wrongful confinement.

22. Admittedly, in Second Appeal No. 95 of 2005, the Judgment and decree passed by the District Court, Panali on 17/6/2005 has been stayed and the direction given by the trial Court in the Judgment and Decree dated 1/12/2003 has been ordered to remain operative, during the pendency of the said Appeal. The petitioners, therefore, were bound to leave the said space of one metre. Accordingly, the petitioners have constructed the compound wall by leaving the space of one metre. Therefore, the question is whether the respondents bona fide presumed that there was N.O.C. from the owners, and whether such a presumption was justifiable or not. This is a disputed question which will have to be decided after the evidence is produced by the prosecution and the same is tested by cross-examination. If the respondents no. 2, 3 and 4 of writ Petition No. 33/2012 had committed criminal offences, as alleged, then nothing had prevented the petitioners from lodging police complaint against them. Admittedly, the petitioners have not lodged any complaint.

23. Section 96 of I.P.C. provides that nothing is an offence which is done in the exercise of the right of private defence. Section 97 of I.P.C. provides as follows:

"Every person has a right, subject to the restrictions contained in section 99, to defend-

First.-- His own body, and the body of any other person, against any offence affecting the human body;

Secondly.-- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 of IPC provides as follows :

"There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.

The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2.- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded."

24. The need of self preservation has its root in the doctrine of necessity. The right of self defence is therefore basis of necessity and without such necessity a right to resort thereto does not exist. There are limits within which the right of private defence can be exercised. The policemen are public servants. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. Thus, when a public officer acts bona fide under colour of his office, right of private defence cannot be exercised against him though his act may not be strictly justifiably by law.

25. That the statements of witnesses are stereo-type, is a defence to be taken in cross-examination of the investigating officer and effect of the same is to be considered on merits. That there was right of private defence of property and that the petitioners acted under the said right and they did not exceed the same are also defences which will have to be taken by the petitioners and proved during trial. In the case of "Ravishwar Manjhi and others"(supra), it has been held that accused can show that they were entitled to exercise right of private defence from the materials on record brought by the prosecution. Therefore, the prosecution should be first allowed to bring on record the material and thereafter the petitioners can show that they were entitled to exercise right of private defence and had not exceeded the right while doing so. In the circumstances above, it cannot be said that there is no prima facie evidence against the petitioners, for having committed offences under I.P.C.

26. In the case of "Bhajan Lal and others", [2013 ALL SCR (O.C.C.) 1] (supra), the Hon'ble Apex Court has stated some categories of cases by way of illustration wherein the extra ordinary power under Article 226 or the inherent powers under Section 482 Cr. P.C. can be exercised by the High Court either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The said categories are as follows :

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

27. It has further been held that in the same case of "Bhajan Lal and others", [2013 ALL SCR (O.C.C.) 1] (supra) that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of all allegations made in the F.I.R. or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

28. In the case of "G. Sagar Suri and another"(supra), the Apex Court has held as follows :

"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. The Supreme Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial."

29. By taking into account the above principles, in the present case, we are satisfied that no case is made out for quashing of the F.I.R. or the Charge Sheet.

30. What remains to be seen is as to what offences are attracted in the facts and circumstances of the present case. The learned Sessions Judge, in the order dated 06/06/2011, has held that the offence under Section 504 of I.P.C. was not attracted to the case against the petitioners. The petitioners have been discharged of the said offence under Section 504 of I.P.C. There can be no dispute that there is no sufficient material on record for framing charge under Section 504 of I.P.C. The Sessions Judge has further held that the offence under Section 307 of I.P.C. is attracted to the acts of Vikram and Ravi since Vikram had gone inside the house and had brought the koita and it was used by Ravi. Therefore, let us see if the material on record is sufficient to apply Section 307 of I.P.C., which is a serious offence.

31. In the case of "Parsuram Pandey and others", [2005 ALL MR (Cri) 796 (S.C.)] (supra) it is observed as follows :

"To constitute an offence under Section 307 two ingredients of the offence must be present:-

(a) an intention of or knowledge relating to commission of murder; and

(b) the doing of an act towards it.

For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. Section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence 'of attempt to murder'. Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for which the accused persons Parshuram and Bishram could have been convicted under Section 302 IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the firearm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using fire arms. There is no evidence about the distance from which the said two accused fired. The only evidence led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW1 and DW-1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under Section 307 IPC".

32. In the present case, admittedly, there was no enmity between the petitioners and the respondents no. 2, 3 and 4 who are policemen. There was dispute between the petitioners and one Ramakant Kalangutkar regarding access. The said access was admittedly claimed through the property of the petitioners. According to the petitioners, there was no right of access to any person through their property. Junior Engineer and member of North Goa Zilla Panchayat, along with materials supplier and labourers had gone to the site to do the work of construction of pathway and the junior Engineer had called the police due to which the respondents no. 2, 3 and 4 had gone there. The petitioners or any of them cannot be said to have had any intention to kill the said policemen or any of them particularly. They only wanted to stop the work. There was no pre-meditation. One of the petitioners namely Vikram had brought the koita, but he did not use it. The other petitioner namely Ravi took the koita from Vikram and threw it at the police. If the petitioner wanted to kill the policeman, then he would not have thrown the koita towards policemen from a distance but would have hit the same on vital part of the body by going close to the policeman. The koita allegedly struck the groin area of the police constable and caused only a simple bruise. The distance from which the koita was thrown is not known. In the above facts and circumstances, we are of the considered opinion that Section 307 of I.P.C. Is not attracted but Section 324 of I.P.C. Is applicable. The other Sections applicable are 506(ii) and 353 of I.P.C. There is also prima facie evidence on record to establish that all the petitioners acted in furtherance of their common intention, insofar as the offences under Sections 353 and 506(ii) are concerned.

33. In the case of "Stree Atyachar Virodhi Parishad"(supra) the Apex Court has observed that Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. It has been held that self restraint on the part of the High Court should be the rule unless there is a glaring injustice which stares the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.

34. In the case of "M. Narayandas", [2004 ALL MR (Cri) 217 (S.C.)] (supra), it has been held that the power to quash F.I.R. must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that Court cannot inquire about reliability or genuineness or otherwise of the allegations made in F.I.R. and Court has also no power to inquire whether the allegations are likely to be established or not.

35. The learned Sessions Judge, in the impugned order dated 06/06/2011, has ordered to frame charge against the petitioners namely Vikram and Ravi for offences punishable under Section 307, 353 and 506(ii) read with Section 34 of I.P.C. and has discharged the petitioners namely Laxmi and Vrinda of the offence punishable under Section 307 of I.P.C, by observing that their common intention with Vikram and Ravi, for this particular offence is not established. However, at the same time, the learned Sessions Judge has given liberty to the State to proceed against said petitioners namely Laxmi and Vrinda for offence punishable under Sections 353, 506(ii) read with Section 34 of I.P.C. before the learned J.M.F.C., Mapusa. Thus, It can be understood that according to the learned Sessions Judge, there is prima facie evidence against all the four petitioners for having shared common intention in respect of the offences punishable under Sections 353 and 506(ii) of I.P.C., but there is no prima facie evidence to establish that the petitioners Laxmi and Vrinda shared common intention with the petitioners Vikram and Ravi in respect of the offence under Section 307 of I.P.C. In our considered view, there is no evidence to establish that the petitioners Laxmi, Vrinda and Vikram had shared common intention with the petitioner Ravi, in respect of the offence of voluntarily causing hurt to the policeman, by means of koita. Vikram had brought the koita but had not used it. Vikram had not handed over the koita to Ravi. But, Ravi himself took the koita from Vikram and threw it towards the policeman and voluntarily caused simple injury to the policeman by name Sanjay Kudav. The order, of bifurcating trial, in our view, also, is not sustainable in law. It can be understood from the records that all the offences were committed in the course of same transaction. Section 220(1) of Cr.P.C. provides that if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. Section 223(d) of Cr.P.C. provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. Besides the above, the records reveal that the petitioners Laxmi, Vrinda, Vikram and Ravi, all, had come out together and started quarreling with Shyamsundar Hadfadkar and others and had stopped the work and threatened them with dire consequences. Prima facie, therefore, the above acts, punishable under Sections 353 and 506(ii) of I.P.C., done by the said petitioners, should be taken to have been done in furtherance of common intention of all of them. However, insofar as the act of causing simple hurt with koita, punishable under Section 324 of I.P.C., is concerned, Ravi had taken that koita from Vikram and suddenly flung the same in the direction of police, thereby causing hurt to P.C. 4094. Therefore, the above act of Ravi is independent.

36. From the above, it is clear that the order dated 06/06/2011 passed by the Sessions Judge is illegal and not sustainable in law. Since we have held that Section 307 of I.P.C. Is not applicable but Section 324 of I.P.C. is applicable, the offences which remain are those punishable under Sections 353, 506(ii) r/w 34 of I.P.C. as against all the petitioners and under Section 324 of I.P.C. as against the petitioner Ravi. All the above offences are triable by the Court of learned J.M.F.C., Mapusa.

37. We do not deem it necessary to refer to each and every judgment relied upon by the parties but we make it clear that we have considered the principles laid down in each of them.

38. In the result, following order is made:-

(i) Order dated 30/9/2010, passed by the learned J.M.F.C., Mapusa, in Criminal Case No. 85/S/2009/E, thereby committing the case to the Court of Session is quashed and set aside.

(ii) All the proceedings taken before the learned Sessions Judge, in Sessions Case No. 36/2010, including the impugned order dated 06/06/2011, charge framed and evidence recorded, are quashed and set aside.

(iii) All the proceedings in Criminal Case No. 188/S/2011, taken before the learned J.M.F.C., Mapusa are quashed and set aside.

(iv) Original Criminal Case No. 85/S/2009/E stands revived and the learned J.M.F.C., Mapusa shall proceed against all the four accused persons named therein for offences punishable under Sections 353, 506(ii) r/w Section 34 of I.P.C., and against accused no.4 Ravi Devsekar for offence punishable under Section 324 of I.P.C.

(v) It is made clear that the findings of this Court, above, are prima facie only for the purpose of framing of charge and the learned J.M.F.C. shall not be influenced by the same while deciding the matter on merits.

(vi) Parties to appear before the learned J.M.F.C., Mapusa (E-Court) on 5th August, 2013, at 10.00 a.m.

39. Rule is made absolute in all the above Writ Petitions, in the above terms. The Writ Petitions stand disposed of accordingly.

Ordered accordingly.