1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.4594 OF 2009 Ashok T. Nihalani ...Applicant. v. The State of Maharashtra & Anr. ...Respondents. Mr. M.S.Mohite, adv. For the Applicant. Smt.V.R.Bhosale, APP For the Respondent No.1. Shri A.P. Mundargi i/by S.R.Mithare, advs. for the Respondent No.2. CORAM : J.H. BHATIA, J. DATED : JUNE 24, 2010 P.C. 1 Heard the learned counsel for the parties. Respondent no.2 is sister of the present applicant. Their mother died sometimes in the year 2000 and their father is living with son, i.e., the present applicant. Respondent no.2 is married and is living with her husband. On 13.11.2008 the respondent no.2 went to the house of the applicant, knocked the door and it was opened by the children of the applicant. There was some exchange of hot words and abuses. The respondent no.2 approached the Khar police station and alleged that besides abusing her, the applicant and his son had also beaten her with hands. Police registered non-cognizable case under Section 323 and 504 of the I.P.C. as Section 155 of the Cr.P.C. It appears that on 6.12.2008, respondent 2 no.2 approached Bhabha hospital at Bandra with the complaint of pain, discharge and inflammation in the right eye. She was examined. She had given history of trauma due to fist blow by her brother. On 13.11.2008 she was examined. X ray was taken but no fracture was found. The diagnosis was pain, discharge and inflammation from the soft tissue from the right orbit. On 16.12.2008 certificate was issued by the hospital that she had artificial eye on the right side and, therefore, there was no movement of that eye and the complaint was about the pain, etc. due to fist blow given to her on forehead on 13.11.2008. It appears that she approached the police, after examinations at Bhabha Hospital on 16.12.2008 and, therefore, police wanted opinion of the concerned medical officer. On 17.12.2008 medical officer sent a report to the Khar Police station pointing out that if by treatment, pain in right eye does not subside for twenty days and has hampered her from doing daily activities, nature of injury will be judged as grievous. That was only legal opinion. He further reported that it is advisable for the patient to continue her treatment and review periodically and final opinion could be given after 20 days. On 31.1.2009 the hospital reported to the Khar police station that pain and inflammation in the right eye was persisting for more than 20 days in spite of taking treatment, this has 3 hampered her routine social life and, therefore, it can be treated as grievous hurt. It further reported that this was the opinion of the concerned doctor but the final decision is left with the panel of specialists. Admittedly, no such final decision of the panel or specialists was obtained. 2 After this on 6.2.2009, statement of respondent no.2 was recorded and it was treated as F.I.R. and offence under Sections 325, 506(II), 504 of the I.P.C. was registered against the petitioner. Present application was filed to quash that F.I.R. It is contended that firstly, no offence of grievous hurt is made out. Secondly, the N.C. was registered for the offences punishable under Sections 325, 504 of the I.P.C. and in view of the provisions of Section 155 of the Cr.P.C. police could not make investigation in non cognizable offence without prior permission from the Magistrate. Therefore, F.I.R. is liable to be quashed. 3 During the arguments, the learned counsel for the petitioner as well as the learned APP inform that police have now filed the charge- sheet under Sections 325, 506(II) and 504 of the I.P.C. The learned counsel for the petitioner contended that as investigation itself was without jurisdiction, being without direction from the Magistrate, the whole investigation and filing of the chargesheet is without jurisdiction 4 and, therefore, chargesheet is also liable to be quashed. 4 There is no dispute that if non cognizable case is registered under Section 155 of the Cr.P.C., police can not investigate the case without prior permission or direction from the Magistrate. Admittedly, no such permission was obtained by the police. The respondent no.2 also did not file any complaint before the Magistrate nor the Magistrate had given any direction to the police to make investigation under Section 156(3) of the Cr.P.C. However, in the present case, it appears that the police on the basis of letters and the medical reports from the Bhabha Hospital came to conclusion that offence under Section 325 of the I.P.C. was made out. Admittedly, respondent no.2 had lost her right eye about 32 years ago and, therefore, in the right orbit or socket, prosthetic eye was planted and naturally, from the right side, she had no eye sight for the last 32 years. Admittedly, even according to the allegations made by the respondent no.2 in report dated 13.11.2008 and again on 6.2.2009, fist blow was given on her forehead by her brother. Sharp or deadly weapon was not used by anybody. 5 We have to find out whether case of grievous hurt as defined under Section 320 of the I.P.C. is made out. Admittedly, the case would not fall under clauses 1st to 7th of definition of Grievous Hurt under 5 Section 320 of the I.P.C. Eighth clause provides that any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits will be designated as grievous hurt. There is nothing to show that alleged injury had endangered her life or that she was during the space of 20 days in severe bodily pain. Merely, some discharge, inflammation and pain from the right socket of the eye could not be treated as such severe bodily pain. In the 8th clause words “unable to follow ordinary pursuits”, naturally mean that the person can not carry on his natural ordinary life to look after one self or to do normal work. If the person is bedridden either in home or in the hospital for twenty days or more because of the injury and is unable to follow ordinary pursuits like attending day to day natural work such as looking after oneself for taking bath, attending toilet, walking, etc. will fall within the 8th clause and will be treated as grievous hurt. 6 Medical certificate issued by the concerned medical officer on 31.1.2009 only shows that the she is unable to wear her prosthetic shell due to persistent inflammation since one month and 25 days and this hampered “her routine social life”. It is not that she has been unable to follow her ordinary pursuits. Social life and ordinary pursuits of the 6 life cannot be the same. Because of the inflammation and discharge from the socket of the eye, if a person is unable to attend social get-together, parties, club, etc., it can not be said that the person is hampered from attending the ordinary pursuits of life. In the present case, there is nothing to show that inflammation had hampered her ordinary pursuits of life. The medical officer, who was the registrar of Opthalmology and not a senior Doctor, clearly stated that this was her opinion and the final decision is left with the panel of specialists. As stated earlier, no such final decision was taken from the panel of specialist. Taking into consideration all these material, it is clear that no case is made out to register the offence under Section 325. At the most offence under Section 323, 504 was made out, which was registered as N.C. on 13.11.2008 by the police. In such circumstances, police had no jurisdiction to investigate the case in view of the provisions of Section 155 of the Cr.P.C. If police felt that in view of the medical certificate, it was necessary to make investigation, police could have obtained permission from the Magistrate which was not done. In view of these circumstances and the material on record and the circumstances, it must be held that the registration of the offence under Section 325, investigation and filing of the chargesheet was without any material and beyond the jurisdiction of 7 police. 7 For the aforesaid reasons, application is allowed and the F.I.R. as well as chargesheet filed by the police are hereby quashed. However, the respondent no.2 shall be at liberty to file complaint before the competent Magistrate for the offence punishable under Sections 323 and 504 of the I.P.C. (J.H. BHATIA,J.)