Criminal Writ Petition No. 2346 of 2011

30th November, 2012

Petitioner Counsel: Shri SUBHASH JHA along with Ms. PRANITA ALWE
Respondent Counsel: Shri V.B. KONDE-DESHMUKH, Shri G.S. HEGDE i/by Ms. P.M. BHANUSHALI along with Ms. PUSHPA THAPPA

Cases Cited:
Kishan Singh (Dead) Through Lrs. Vs. Gurpal Singh & Others, 2010 ALL MR (Cri) 3948 (S.C.) =(2010) 8 SCC 775 [Para 10,20]
Mathri Vs. State of Punjab, AIR 1964 SC 986 [Para 17]
Smt. Kanwal Sood Vs. Nawal Kishore and Another, (1983) 3 SCC 25 [Para 18]
State of Haryana and Others Vs. Bhajanlal and Others, 2013 ALL SCR (O.C.C.) 1 =(1992) SCC (Cri) 426 [Para 21,22]

JUDGMENT

A. S. OKA, J. :- We had earlier put the parties to the notice that the Petition will be decided finally at the stage of admission. Accordingly, we have heard learned counsel appearing for the Petitioners, the learned APP for the first Respondent and the learned counsel appearing for the second Respondent.

2. The prayer in this Petition is for quashing the proceedings of criminal case on the basis of First Information Report No.161 of 2011 registered at the instance of the second Respondent with Kalamboli Police Station, Navi Mumbai. We may note here that when the Petition was filed, charge sheet was already filed but perhaps the Petitioners were not aware of the same. But for the orders passed by the earlier Bench, we would have relegated the Petitioners to the Trial Court. When the Petition appeared before this Court on 21st September, 2011, the following order was passed:

"1. Even in this matter which is arising out of counter complaint between the parties (Writ Petition No.2597/2011 disposed of by separate order today), learned A.P.P. States that on instructions of A.P.I. Mr. Arun Katkar, A.P.M.C. Police Station, Navi Mumbai, that chargesheet has been filed before the appropriate Court. If it is so, the petitioners will have to pursue remedy before the appropriate Court, if so advised.

2. Counsel for the petitioners prays for time to take instructions. We make it clear that if the petitioners intend to pursue present Petition may have to give up their right to apply for discharge before the concerned Court as the grounds raised for quashing of F.I.R. And chargesheet would be same and overlapping with the grounds of discharge. Stand over to tomorrow i.e. 22nd September, 2011 under caption "withdrawal"." (emphasis added)

When the Petition appeared before this Court on 12th October, 2011, the following order was passed.

"Counsel for the petitioners submits that the petitioners agree to pursue this petition on clear understanding that they may not be entitled to pursue remedy of discharge before the trial Court if the grounds raised in the present petition as amended, were to be decided by this Court one way or the other on merits. In other words, the petitioners intend to pursue remedy only before this Court. Accordingly, place this matter for admission on 18.10.2011."

3. Thus, a conjoint reading of the aforesaid two orders shows that when this Petition was placed before the earlier Bench, on the statement of the learned counsel appearing for the Petitioners that the Petitioners will pursue this Petition on a clear understanding that they will not be entitled to pursue a remedy of discharge before the Trial Court, this Court decided to entertain this Petition on merits. The order dated 12th October, 2011 has been passed after hearing learned counsel appearing for the second Respondent. Therefore, we are not entertaining the preliminary objection raised by the second Respondent that in view of the availability of remedy of applying for discharge, the present petition should not be entertained. The submission of the learned counsel appearing for the Petitioners is that this is a clear case of abuse of process of law and, therefore, the Petition needs to be entertained.

4. According to the case of the Petitioners, they are the employees of Nilkamal Limited and are posted in a store of the said Company by the name "At Home Furniture and Furnishing" at Vashi, Navi Mumbai. According to the case of the Petitioners, the first Petitioner is the Assistant Store Manager and in-charge of the said store, who is responsible for keeping the stock in the store. It is alleged that the said Company deals in furniture, furnishing, artifacts and other allied home decor products. It is alleged that the second Petitioner is an assembler whose duties comprise of delivering the goods to the customers and assembling furniture in the premises of the customers. One Surendra Lamani, the son of the second Respondent was working as an Associate Customer Service Executive in the said store at Vashi along with the Petitioners.

5. It is alleged that the first Petitioner noticed during the routine stock inventory that some goods/articles were not available in the store. It is alleged that the said Surendra Lamani had called for the goods from the warehouse as well as other stores without concurrence of his superiors. There were certain intimations sent by Surendra Lamani which show that the goods were called by him and were dispatched by him without accounting for the same. It was revealed that the goods worth Rs.70,000/- were missing from the store. The employer of the Petitioners asked the first Petitioner to lodge a police complaint against the said Surendra.

6. According to the case of the Petitioners, the first Petitioner approached the APMC Police Station for registering an offence for ascertaining the veracity of the allegations, the police came to the store and the said Surendra was taken to the police station at about 6.00 pm on 17th March, 2011. After questioning him for some time, he was allowed to go. In the meanwhile, it was realized that some articles were delivered at the residence of the said Surendra. As the second Respondent was known to the Petitioners, they went to the residence of Surendra Lamani when the second Respondent was present. After noticing the Petitioners from security grill, Respondent No.2 opened the door and allowed the Petitioners to come in. Though she offered tea to them, they declined and pointed out that they were informed by the staff that certain articles have been delivered to her address and, therefore, they had come to visit her place to verify the fact. It is alleged that articles belonging to the store were very much visible inside the house. The Petitioners were in the house for 10 minutes when the second Respondent requested them not to initiate action against her son. First Information Report No.70 of 2011 was accordingly registered on 18th March, 2011 against the said Surendra for commission of an offence punishable under Section 408 of the Indian Penal Code. The said Surendra was arrested and was later released on bail.

7. On 22nd March, 2011, the officers of Kalamboli Police Station visited the store where the Petitioners were employed and they requested the Petitioners to attend the police station in connection with the First Information Report bearing No.161 of 2011 recorded at the instance of the second Respondent. The Petitioners visited the police station when statement of the first Petitioner was recorded. Thereafter, under order dated 11th April, 2011, the Sessions Court granted anticipatory bail in their favour.

8. The First Information Report bearing No.161 of 2011 was registered on 20th March, 2011 on the basis of information furnished by the second Respondent at 20.55 hours on 20th March, 2011. the information is regarding the alleged offence committed at 19.30 hours on 17th March, 2011 by the Petitioners. The second Respondent in her complaint alleged that she was residing at the address mentioned therein along with her two sons including the said Surendra along with his daughter-in-law. She stated that at 19.30 hours on 17th March, 2011, the Petitioners visited her residence and informed her daughter Priyanka who is 17 years old that they desire to come inside the house. The second Respondent told them that as the male members of the family were not present, they should not enter the house. It is alleged that the Petitioners told Priyanka, the daughter of the second Respondent, to sit on one side in the house. Therefore, the second Respondent along with daughter sat on one side in the house. Thereafter, the Petitioners took photographs of the bedroom, sitting room and kitchen and went away. The offences alleged are under Sections 452 and 341 read with Section 34 of the Indian Penal Code. The charge-sheet has been filed for the aforesaid offences after completion of the investigation.

9. The submission of the learned counsel appearing for the Petitioners is that by accepting the statement of the witnesses forming part of the charge sheet as it is, no offence is made out. He pointed out that for constituting the offence punishable under Section 452 which is house-trespass after preparation for causing hurt, assault or wrongful restraint, it is necessary to prove that criminal trespass has been committed. He submitted that the First Information Report registered by the first Respondent which is first in point of time shows that the Petitioners entered the house of the second Respondent only for the purposes of ascertaining whether the goods of their employer were brought by the son of the second Respondent to the house of the second Respondent. He submitted that though in the First Information Report, it is alleged that the photographs were taken out by the Petitioners, no such photographs form part of the charge sheet. He urged that there was no intent to commit any offence or intimidate or insult or annoy the second Respondent. He, therefore, submitted that as the case of criminal trespass is not established, there is no house-trespass committed within the meaning of Section 442 and, therefore, Section 452 of the Indian Penal Code will not be attracted. As far as Section 341 is concerned, he submitted that by taking the allegations of the first informant as it is, the case of a wrongful restraint under Section 339 of the Penal Code is not made out.

10. Learned counsel appearing for the Petitioners submitted that the offence registered at the instance of the second Respondent is a counter-blast to the offence registered at the instance of the first Petitioner against the son of the second Respondent. He submitted that there is a delay of three days in lodging the First Information Report which has not been explained. He submitted that the First Information Report is lodged due to vengeance. He placed reliance on the various decisions of the Apex Court including the decision in the case of Kishan Singh (Dead) Through Lrs. v. Gurpal Singh & Others [(2010)8 SCC 775] : [2010 ALL MR (Cri) 3948 (S.C.)]. He submitted that the First Information Report is lodged by the second Respondent maliciously and with an ulterior motive for wreaking vengeance on the Petitioners.

11. Learned counsel appearing for the second Respondent submitted that notwithstanding the protests by the second Respondent and her daughter in absence of any male members of his family, the Petitioners forced their entry in the residential premises of the second Respondent. The first informant and her daughter were forced to sit on one side. He submitted that there was clear intent on the part of the Petitioners to intimidate and/or to annoy the second Respondent. He submitted that this is a case where the second Respondent and her daughter were wrongfully restrained. He submitted that notwithstanding the protests of the second Respondent and her daughter and notwithstanding the knowledge of the fact that none of the male family members of the second Respondent were in the house, the Petitioners forced their entry inside the house of the second Respondent. He submitted that whether the offences alleged to have been made out or whether any lesser offences are made out, are the questions to be decided on trial. He urged that in the statements recorded of the second Respondent's daughter, the delay of three days has been duly explained and in any case, it is a matter for trial. He, therefore, urged that no interference is called for. The learned APP submitted that perusal of the charge sheet shows that offences alleged against the Petitioners are made out and, therefore, no interference can be made this stage .

12. We have carefully considered the submissions. We have perused the charge sheet. We have perused the First Information Report lodged at the instance of the first Petitioner. We have already noted that the first Petitioner and Surendra Lamani, the son of the second Respondent were the employees of the same Company which was having a store where furnitures, appliances and artifacts are being sold. According to the case of the Petitioners, it was noticed that certain goods were called for by the said Surendra. It is alleged in the FIR lodged at the instance of the first Petitioner that Surendra sold certain articles directly to the customers and some valuable articles have been taken by him to his residence without accounting for the articles . The First Information Report against the said Surendra was registered at 22.05 hours on 18th March, 2011 at the instance of the first Petitioner. The case of the Petitioners is that they knew the second Respondent and, therefore, they went to the premises of the second Respondent to ascertain whether the goods of their employer were in the premises of the second Respondent. In the statement of the first Petitioner recorded on 22nd March, 2011, he has narrated the circumstances under which they went to the house of the second Respondent.

13. Perusal of the charge sheet filed on the basis of the offence registered at the instance of the second Respondent shows that apart from the second Respondent, two panch witnesses as well as the Investigating Officer and Priyanka, the daughter of the second Respondent, one Soubhagyalaxmi, a daughter-in-law of the second Respondent has been cited as the prosecution witnesses. In the complaint filed by the second Respondent on 20th March 2011, she stated that at about 19.30 hours on 17th March, 2011, the Petitioners came to her residence. The Petitioners have been named in the complaint and the first Petitioner has been described as the Manager of Home Nilkamal Mall. Thus, the second Respondent personally knew the Petitioners. According to her version, though she informed the Petitioners that no male members from her family were present and therefore they should not enter the house, the Petitioners entered the house and told the second Respondent and her daughter Priyanka to sit quietly on one side. Thereafter, they took photographs of the bedroom, hall and kitchen and went away. It is alleged that an objection was raised to the photographs being taken. It is not in dispute that the alleged photographs do not form part of charge sheet filed against the Petitioners. The perusal of the statement of Priyanka, the daughter of the second Respondent, shows that her version is different to some extent . Her version is that the Petitioners entered residential premises though they were told not to do so. Her version is that the Petitioners told herself and her mother to quietly sit in the bedroom. In her statement, she has stated that on 18th March, 2011, the second Respondent visited Kalamboli Police Station and made an application in writing. She further stated that the police informed her to bring Surendra to the police station. It is stated that Surendra was not available on that day. It is stated that a phone call was received from the police station on 18th March, 2011 and the second Respondent took Surendra to the police station on the next day when he was arrested. A copy of the written application allegedly made by the second Respondent is not a part of the charge sheet. Even the second Respondent has not produced the same on the record of this petition. The third witness is Soubhagyalaxmi, a daughter-in-law of the second Respondent. Taking her statement as it is, it shows that she has no personal knowledge about the incident but her version is based on the version of the second Respondent and the said Priyanka conveyed to her. She reached home at 20.30 hours when she was informed about the incident by the second Respondent and daughter of the second Respondent. Even according to her version, the second Respondent and her daughter-in-law were told by the Petitioners to sit in the bedroom.

14. Section 341 of the Indian Penal Code is a section which prescribes punishment for causing wrongful restraint. Section 339 of the Indian Penal Code which defines for wrongful restraint reads thus:-

"339. Wrongful restraint.- 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."

15. Taking the statements of the second Respondent and her daughter as it is, it is not their case that the Petitioners prevented them from proceeding beyond certain limits. The version of Priyanka that they were told to sit in the bedroom. However, in her statement, she has merely stated that the Petitioners told her and her mother to sit in the bedroom. She has not stated that they proceeded to bedroom and were sitting there. The version of the second Respondent is that they were told to sit by a side and accordingly they were sitting on one side of the house. She has not stated that they were told to sit in the bedroom. Both the witnesses have not stated that they were restrained from moving from one place to another in the house. Their only allegation is that they were told to sit at a particular place. There is no allegation that they were prevented by the Petitioners from moving. They have stated that they were told to sit at a particular place. There is no overt act of obstruction preventing them from moving to another place has been alleged by the witnesses. Therefore, on plain reading of the statements of the witnesses, the case of wrongful restraint under Section 339 is not made out.

16. As regards the offence alleged under Section 452 of the Indian Penal Code is concerned, the said Section reads thus:-

"452. House-trespass after preparation for hurt, assault or wrongful restraint.- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

Section 452 is attracted when there is allegation of commission of house-trespass in terms of Section 442 of the Penal Code which reads thus:-

"442. Housetrespass.- Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass."

Section 442 is applicable only when a criminal trespass is committed. Section 441 reads thus:-

"441. Criminal trespass.-Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,

or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence,

is said to commit "criminal trespass."

17. The submission of the learned counsel appearing for the second Respondent is that the Petitioners entered the premises of the second Respondent with an intent to annoy the second Respondent as the forcible entry of the Petitioners in the house of the second Respondent is bound to cause annoyance to her. It is not even alleged that the Petitioners had any intention of committing any offence. The submission of the learned counsel appearing for the second Respondent was that when the Petitioners forced their entry in the premises admittedly in possession of the second Respondent, they had knowledge that their action will cause annoyance to the second Respondent and her daughter. On this aspect, it will be necessary to make a reference to a decision of the Apex Court in the case of Mathri Vs. State of Punjab (AIR 1964 SC 986). The Apex Court considered the definition of a criminal trespass in Section 441 of the Penal Code. The Apex Court dealt with an argument that the accused entering the premises were very well aware of the natural and inevitable consequences of the entry that the persons in possession will be annoyed. The Apex Court considered various decisions of various High Courts on this aspect. In Paragraph 18, the Apex Court ultimately held thus:-

"18. We think, with respect, that this statement of law as also the similar statements in Laxaman Raghunath's case, ILR 26 Bom 558 and in Sellamudhu Servaigaran's case, ILR 35 Mad 186 are not quite accurate. The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry." (emphasis added)

18. In the present case, going by the statements of the second Respondent and her daughter, the Petitioners entered the premises and were inside only for few minutes. After taking photographs, they left the premises. As held by the Apex Court, that causing annoyance must be the aim for the entry in the premises and the fact that natural consequences of the entry will be causing annoyance is not relevant. The fact that within few minutes the Petitioners came out shows that at the time of entry, they had no intention to annoy the second Respondent. On this aspect, it will be also necessary to make a reference to the decision of the Apex Court in the case of Smt. Kanwal Sood Vs Nawal Kishore and Another [(1983)3 SCC 25]. In Paragraph 10, the Apex Court, while dealing with Section 441 of the Penal Code, observed thus:-

"10. ...At the most, it can be said that after the death of Shri Sood the leave and licence granted by Shri Sood came to an end and if she stayed in the premises after the death of Shri Sood, her possession may be that of a trespasser but every trespass does not amount to criminal trespass within the meaning of Section 441 of the Indian Penal Code. In order to satisfy the conditions of Section 441 it must be established that the appellant entered in possession over the premises with intent to commit an offence. ..."

19. Therefore, taking the case of the second Respondent and her daughter as per the version in the police statements as it is, a criminal trespass within the meaning of Section 441 of the Penal Code is not made out as there is absence of intent to cause annoyance at the time of entry. Consequently, the case of house-trespass is not at all made out and hence, Section 452 will have no application.

20. On plain reading of the complaint filed by the first Petitioner which is filed three days prior to the impugned First Information Report, it is apparent that the First Information Report registered at the instance of the second Respondent appears to be a counter-blast to the earlier First Information Report registered at the instance of the first Petitioner against the son of the second Respondent. It will be necessary to make a reference to Paragraph 22 of the decision of the Supreme Court in the case of Kishan Singh v. Gurpal Singh, [2010 ALL MR (Cri) 3948 (S.C.)] (supra). In Paragraph 22, the Apex Court has held thus:-

"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide: Chandrapal Singh and Ors. v. Maharaj Singh and Anr. MANU/SC/0228/1982 : AIR 1982 SC 1238; State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. MANU/SC/0115/1992 : AIR 1992 SC 604; G. Sagar Suri and Anr. v. State of U.P. and Ors. MANU/SC/0045/2000 : AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. and Ors. MANU/SC/7983/2008 : (2008) 12 SCC 531." (emphasis added)

21. It will be necessary to make a reference to Paragraph 102 of the well-known decision of the Apex Court in the case of State of Haryana and Others Vs Bhajanlal and Others (1992 SCC (Cri) 426) : [2013 ALL SCR (O.C.C.) 1]. In Paragraph 105, the Apex Court has held thus:-

"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. 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.

2. 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.

3. 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.

4. Where, the allegations in the F.I.R. 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.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. 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.

7. 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.

22. From the factual scenario which emerges, it is obvious that this is a fit case where category 7 in the case of Bhajan Lal [2013 ALL SCR (O.C.C.) 1] (supra) will apply to the present case apart from the fact that from the charge sheet no offences as alleged have been made out.

23. Therefore, this Petition for quashing must succeed and we accordingly allow the Petition in terms of prayer clause (a i).

Petition allowed.