1 WP 1923.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL WRIT PETITION NO. 1923 OF 2011 Embassy Property Developments Ltd. & Ors. ... Petitioners. V/s. The State of Maharashtra & Anr. ... Respondents. Mr. Satish Mane-Shinde i/b. Ms. Snehal Khairnar for the Petitioner. Mr. Rajesh More, APP for the State. Mr. Aniket Nikam for Respondent 2. CORAM : K.U. CHANDIWAL, J. DATED : 23rd AUGUST 2011. P.C. :- Heard finally. Rule made returnable forthwith. 2. The Petitioner – a Company incorporated under the Companies Act seeks to challenge the order of issuance of process dated 18.4.2011 recorded by the learned Judicial Magistrate, First Class, Pune in S.T.C. Case No.0440276/10 filed by Respondent Mr. Dilip Thakkar. 3. The Respondent under a registered deed of sale dated 29th August 2006 executed by his vendor Mr. Mohan Rajkumar Dewan has purchased the agricultural property bearing Plot No.6, admeasuring 40 R. forming part of Survey No.54, Hissa No.1, Mauje Marunji, Talukar Mulshi, District Pune. 2 WP 1923.11.sxw 4. The Respondent canvassed, before purchase of the property, there was already a measurement caused through Taluka Inspector of Land Records (T.I.L.R.) of the area wherein the access to the property owned by the Respondent is carved out and consequently, there exists a road. According to him, this is more supported even in the document of sale in his favour. The Respondent alleged that the Petitioner having acquired the property under the Special Scheme of Government of Maharashtra, are the adjoining owners/occupiers and the employees or the Petitioners have obstructed the access from proceeding to and from the directions of his plot to the existing road which is illegal in its nature. The Respondent also alleged that there was wrongful restraint and attempted extortion and the case in terms of Sections 341 and 385 r/w. Section 34 of I.P.C. was moved. As stated above, the learned Judge issued the process to the extent of offence punishable under Section 341 r/w. Section 34 of I.P.C., against Petitioners, its directors. 4. The learned Counsel for the Petitioner has invited attention to the correspondence and meetings, the authorised agent of the Petitioner or the Respondent had with the MIDC officers. At one stage of such meeting a three meter road was purported to be made available by the Petitioner herein to be used by villagers and also the Respondent No.2. This was not agreed upon. 5. The Petitioner’s learned Counsel pointed that the directors have no role. Even if the complaint is read as a 3 WP 1923.11.sxw whole, there is no involvement in any manner of wrongful causing inconvenience or restraint to any of the person or the Respondent himself. The user sought by the Respondent of the road erected by the Petitioner on their property cannot be made available as it would be violating the rules of the Special Scheme commonly called SEZ under which the property is leased to them by MIDC way back on 5.8.2004, and under a registered lease dead dated 23.5.2006 for the purpose of putting up construction of Information Technology Park (IT Park). 6. The learned Counsel submits that the possession of the Petitioner to the property was known to the Respondent who is subsequent purchaser as the Petitioner is enjoying the property and developing it from 5.8.2004. 7. The learned Counsel for Respondent No.2, while criticizing taking up the proceeding in terms of Section 482 of Cr.P.C. as highlighted to the powers of this Court to say, they are regulated by very section itself. In order to press his contentions, the learned Counsel reiterated to the observations of the Supreme Court in the matter of R.P. Kapur V/s. State of Punjab (AIR) 1960 SC 866. The Supreme Court noted following three categories of the case where the inherent jurisdiction to quash proceedings can and should be exercised : (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal 4 WP 1923.11.sxw proceeding in respect of offences alleged. (ii) Where the allegations in the F.I.R., or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the FIR to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused do constitute an offence alleged but there is either no legal evidence in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. 8. The Division Bench of this Court in the matter of Anil B. Nadkarni V/s. Amitesh Kumar reported in 2001(4) Mh.L.J. While dealing with the aforesaid observations in the matter of R.P. Kapur observed in paragraph 37 as under :- “37. In respect of the third category, the Supreme Court voiced a note of caution. It observed that distinction will have to be drawn between a case where there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. The Supreme Court observed that in exercise of its inherent jurisdiction, the High Court would not embark upon an enquiry as to whether the evidence 5 WP 1923.11.sxw in question is reliable or not because that is the function of the trial Magistrate.” 9. The learned Counsel submits that it is not expected by this Court to have investigation as to the rights of the Respondents to the access or whether the right primarily exist The process issued by the learned Judge, should not be disturbed. 10. The Respondent No.2 has to primarily display that Directors can be indicted for criminal acts, where those purporting to act on their behalf claim the authority of the Directors to act in the manner they have done. There is no element of a wrongful restraint to prevent the Respondent No. 2 to proceed in particular direction as of right. 11. At this stage of the matter, this Court is not called upon the decide rights of the Petitioner or of Respondent No.2, on the access or so called road. However, the Respondent when seeks to get the process issued, claiming wrongful restraint and seeking a punishment in terms of Section 341 of I.P.C. for such wrongful restraint, has to indicate primarily, that there existed a road for him to approach his property. Any land block to his property created due to subsequent events and circumstances, should not be to the detriment and shoulders of the Petitioners. Respondent No.2 has his rights and remedies before the Maharashtra Industrial Development Corporation where he can seek redressal. The Respondent 6 WP 1923.11.sxw No.2 prima-facie could not point that Directors of Petitioner planned to obstruct enjoyment of any free flow of road. 12. The abridgment to the enjoyment of road that has been canvassed if read from the correspondence placed by the letter of MIDC dated 11.11.2010 and letter dated 8.9.2009, it more than clearly demonstrate that the Respondent could not satisfy the authorities of MIDC of a existing and all through out flowing right of Road under any statutory arrangement for user of any road. The road is erected by the Petitioner and considering very nature of its project, it may not be possible for Petitioners to allow intruding in its property by Respondent No.2 to create a fueling nuisance and looming security threat. 13. Taking these aspects into consideration, the issuance of process by the learned Judge is erroneous as primarily there is no reference of the Petitioner deliberately with intention to cause such restraint or under the rights of Respondent No.2 wrongfully restrained Respondent No.2. Again, explanation of Section 339 of IPC needs consideration, which reads as under :- “ The obstruction of a private way over land or water which a person in good faith beliefs himself to have a lawful right to obstruct, is not an offence within the meaning of this Section.” 14. To repeat, The record illustrate that the newly 7 WP 1923.11.sxw constructed road belongs to the Petitioner and consequently, the Respondent could not have right to claim that he was obstructed or prevented from its user. The land block as could be seen from the map, is obvious. This is created by circumstances but by no fault of the Petitioners. It is also not possible that the Respondent should have an airdrop. However, for that, criminal prosecution is not the solution. The matter needs to be resolved with MIDC which has leased the property to the Petitioners. 15. With the above observation, the prosecution initiated by Respondent No.2 against the Petitioner being in excess of powers vested and is certainly abuse of powers, is required to be quashed and set aside. It is accordingly quashed and set aside. Rule made absolute accordingly. (K.U. CHANDIWAL,J.)