IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 263 OF 2011 Brig. Asil Singh (Retd.) .. .. Applicant Vs. Capt. Inder Mohan Duggal (Retd.) & Ors. Respondents Brig. Asil Singh - Applicant in person Mr. D. R. More, APP for State Mr. S. R.Gambavale for R-1 to 3. CORAM: K. U. CHANDIWAL, J. DATED: 29/9/2011 P.C. Heard the applicant-in-person and learned counsel for respondents 1 to 3. 2. Elaborate submissions are advanced as to rights of the parties over the area which respondent claims to be a garden being purchased by him from the builder-developer. While the applicant claims that it is part of side margins and consequently he has right of access through such side margins. The civil litigation was also referred to inform as to how either the right in favour of the applicant as a flat purchaser flows or as to how the right to enjoy the property flows in favour of respondents 1 to 3. 3. The applicant is occupier of Flat No. 3, while respondents 1 to 3 are residing in flat No. 1 in the same building. The allegations are to the events of 23/5/2008. The respondents 1 to 3 assembled at the site and demolished dividing wall marked as “B” in the sketch and erected an obstacle of wire mesh, wood, bricks and other scrap materials. The matter was referred to the various authorities and a complaint was filed. The J.M.F.C. sent the matter to the police for inquiry. Having gone through the police report, the J.M.F.C. issued process under Section 341 r/w 34 of the IPC against respondents 1 to 3. This was challenged by respondents 1 to 3 before District and Sessions Judge at Pune, in Criminal Revision Application No. 106 of 2010 and the District Judge allowed the revision and hence the present application by the applicant-original complainant. 4. The reference to the injunction confirmed by Principal District Judge, Pune dated 23/4/2007 does not indicate any restraint against the present respondents to remove either the wire fencing or to cut the trees by them as everything was attributable to defendant No. 4 in the said case, who is not before this court nor was a party to criminal proceedings. 5. The Apartment Agreement dated 16/10/1992 speaks of a garden upto the premises of the respondents. Its rights are vested in favour of the respondents. The reference by the complainant- applicant to the affidavit of the City Engineer in civil proceedings of R.C.S. No. 247 of 2002 in the matter of Capt. Inder Duggal v. Commissioner, PMC & Ors. , is out of context and has no bearing on the present prosecution. 6. A disputed question of fact concerning rights of the applicant in respect of his so-called enjoyment over the property being raised, the issuance of process in terms of Section 341 r/w 34 of the IPC was uncalled for. The provisions of Section 339 conceive what is wrongful restraint. It says who ever 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 restraint that person. Path to which the original complainant claims right is primarily not indicated from any of the documents to which he gives reference. Again, if there exists an injunction in favour of applicant, he could be successful for initiating action for purported defiance to injunction order, however, he did not succeed with any feathers. 7. The parties are litigating in several other courts. Naturally they will have to establish their rights particularly of the complainant to enjoy the portion of which he is claiming right of access. 8. Application lacks merit. Dismissed. (K. U. CHANDIWAL, J.)