1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 977 OF 200 WRIT PETITION NO. 977 OF 200 WRIT PETITION NO. 977 OF 2008 Shammi Nagpal, aged 50 years, of Mumbai, residing at 209, Olympus Apartments, Altamount Road, Mumbai 400 026 and currently temporarily staying at The Hilton Towers, Nariman Point, Mumbai 400 021. ... Petitioner Versus 1. State of Maharashtra, (Through the Senior Inspector of Police, Gamdevi Police Station, Mumbai). 2. The Commissioner of Police, Police Head Quarters, Crawford Market, Mumbai. 3. Additional Commissioner of Police, South Region, Mumbai. 4. Sudhir Lalchand Nagpal, of Mumbai Indian Inhabitant, Director of Piem Hotels Ltd. having office at 90, Cuffe Parade, Mumbai 400 005. 5. Col. Yadav, General Manager - Administration, Indian Hotels Company Limited, Mandlik House, Mandlik Road, Mumbai 400 001. 6. Indian Hotels Company Limited, A company registered under the provisions of the Indian Companies Act, 1956, Represented by its Managing Director having its registered office at Mandlik House, Mandlik Road, Mumbai 400 001. 7. Directors, Officers and employees of Indian Hotels Company Limited, Mandlik House, Mandlik Road, Mumbai 400 001. 2 Mr.Satish Maneshinde with Mrs.N.S. Nappinai for Petitioners. Mr. P.S. Hingorani, A.P.P. for State. Mr. Amit Desai, Sr. Counsel i/by Mulla & Mulla & C.B. & C. for R. Nos. 5 and 6. Mr. Shirish Gupte with Mr. Sanjay Parab for R. No.4. CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. DATED: OCTOBER 18, 2008 DATED: OCTOBER 18, 2008 DATED: OCTOBER 18, 2008 ORAL JUDGMENT (Per F.I. Rebello, J.): ORAL JUDGMENT (Per F.I. Rebello, J.): ORAL JUDGMENT (Per F.I. Rebello, J.): . Rule. Heard forthwith. 2. The Petitioner is the wife of Respondent No. 4 and according to her she is a non-resident Indian. In the Petition, she sets out that she resides at 209, Olympus Apartment, Altamount Road, Mumbai 400 026. According to Petitioner, the first respondent has deliberately, willfully and negligently failed to register a criminal complaint against her husband on 27.3.2008 against Respondent No. 4 and certain others named therein for the offences punishable under Sections 341, 379,380, 403 and 451 of the Indian Penal Code. The Petitioner has averred that her husband has acted with gross disregard to the rule of law and without due process of law has forcibly dispossessed the Petitioner from her matrimonial home and that too in her absence and 3 removed her precious belongings. Inspite of the Petitioner making out prima facie case of commission of several cognizable offences by the persons named in the complaint, the first respondent has failed and neglected to register the criminal complaint. 3. It is not necessary to set out the facts in detail except to the extent that they are required. The Petitioner and Respondent No. 4 were married under the Hindu Marriage Act on 1.9.1987.The Respondent No. 4 is the Director since 1990 and shareholder of PIEM Hotels Ltd. which partly owns the Hotel Taj. They were initially residing with the parents of Respondent No. 4 for nearly eight years after their marriage. After about July, 1995, they have been residing in the premises described above. As the respondent No. 4 desired to reside separately and M/s. PIEM Hotels offered director’s accommodation the Petitioner had scouted and found the said premises as suitable accommodation for them and the premises were thereafter given as Directors’ residence to Respondent No. 4 as other family members were similarly provided independent accommodation. 4. According to the Petitioner in August, 2006, Respondent No. 4 suddenly and without any reason 4 left the premises and started residing at The Taj President at Cuffe Parade. The Petitioner has been staying alone at the said premises since August, 2006 which is also her marital home. She has been in sole, absolute and settled possession of the said premises. The Petitioner and Respondents were married for nearly 21 years and still Respondent No. 4 moved out of the matrimonial home in August, 2006. The marriage of the Petitioner and Respondent No. 4 was without major discord except some incidents. The keys of the door of the premises were with Respondent No. 4 and the Petitioner. No one else had the keys. After Respondent No. 4 left the premises and started residing in Hotel, the Petitioner found that there was some damage to the front door and the front door lock of the said premises and it seemed like there had been an attempted break in and hence called upon Respondent No. 4 . Upon the request of Respondent No. 4, Petitioner changed the front door lock of the said premises. According to the Petitioner Respondent No. 4 had in fact sent a message on the Petitioner’s mobile on 3.11.2006 referring to the above incident and offering to extend the assistance of the security personnel of M/s. PIEM Hotels Ltd. After November, 2006, Respondent No. 4 also therefore, does not have or possess a copy of the front door key to the said premises. Though the 5 Petitioner had offered to give a copy of the front door key to Respondent No. 4, he did not take it from the Petitioner. Respondent No. 4 neither came back to the premises to live nor have visited the Petitioner till 2008 when he came for a brief visit. In January, 2008, the society orally complained of leakage both from the apartment above the said premises as well as from the said premises to the apartment below the said premises and on several occasions from January 15, 2008 to February 16, 2008 the Society plumber carried out some repairs. The Petitioner’s work requires her to undertake travel. The Petitioner left Mumbai on a business trip and on her return on February 26, 2008, she was shocked to see a note from one Col. Yadav (the 2nd accused in the Complaint), General Manager Administration of the Indian Hotels Company Limited, claiming that the leakage problem still continued and asking the Petitioner to contact him. The water supply to that bathroom had also been completely shut off from the mains outside. The Petitioner spoke to Respondent No. 5 who then come to the said premises on February 29, 2008 along with Respondent No. 4 and one Mr. Pillai, the plumber. On that date Respondent No. 4 took away a file containing papers. 6 . At this stage it may be pointed out that on or about or at the beginning of the year 2007, Respondent No. 4 filed a Petition for annulment of marriage with the Petitioner being M.J. Petition No. A 210 of 2007 after 21 years of the marriage. That Petition came to be dismissed. 4. According to Petitioner, Respondent No. 4 having failed in their attempt along with other accused named in the complaint, have committed illegal acts. On March 19, 2008, when the Petitioner was in Singapore, she was shocked to read an email dated March 18, 2008 from Respondent No. 4 that he has returned the said premises to Indian Hotels Company Limited. as the 6th Respondent had revoked and cancelled the Service Occupancy Agreement and directed Respondent No. 4 to hand over possession of the said premises. It was set out therein that some of her belongings and articles kept at the said Premises had been moved to a godown in Vashi, Navi Mumbai and that articles kept in one cupboard alone had not been removed. After coming back to Mumbai in the late evening of March, 19, 2008, the Petitioner found that the locks in the main door had been changed and she could not enter the said premises. According to Petitioner some of the articles belonging to her which were in the 7 premises and which had been accumulated over the period of 21 years were worth nearly Rs.3,50,70,000/-. 6. The Petitioner thereafter has made a complaint and visited the police station and met various officers but of no avail. She has also filed a suit under Section 6 of the Specific Reliefs Act. It may be mentioned that the interim relief prayed has been rejected and appeal has been filed and according to Petitioner it has been heard but the order is awaited. It is not necessary to set out various averments as to what steps she has taken to prosecute the complaint. 7. A reply has been filed on behalf of Respondent No. 4. According to Respondent No. 4, the Petitioner and he married on 1.9.1987 under Hindu Marriage Act. The Respondent No. 4 was Director of PIEM Hotels Ltd. and in the year 1996, he was provided the said flat as residential accommodation. The Petitioner and Respondent No. 4 moved into the said flat. The entire cost of renovation was borne by M/s. PIEM Hotels Limited. On and from 1st April, 2005, Respondent No. 4 was appointed as an Adviser IT by Indian Hotels Company Limited and on 24th Aghast, 2005 he received a letter of 8 appointment on confirming the aforesaid designation on a fixed term employment contract. In terms of the said appointment, he was entitled to a fully furnished accommodation and therefore, IHCL took the said flat on leave and licence from M/s. PIEM Hotels Limited vide an agreement dated 11th October, 2005 and the said flat was allotted to Respondent No. 4 pursuant to a letter dated 20th October, 2005 and subsequently a service occupancy agreement dated 22.12.2005 was executed. Around August, 2006 due to the adamant nature of the Petitioner, particularly not to bear children, which was further precipitated by various irreconcilable differences, Respondent No. 4 moved out of the said flat and started residing separately in a room at Hotel Taj President. He also filed a petition for divorce in the Family Court. Though he had left the flat some of his belongings continued to be remained in the said flat and that he used to visit very regularly. He had full and unrestricted access to the said flat with the keys which were in his possession till such time, he himself and IHCL discovered in January, 2008 that the Petitioner had dishonestly, illegally and without his knowledge changed the locks of the door. In January, 2008, the society in which the said flat is situated complained to him about lot of leakage from the said flat and further told him that the Petitioner had not paid heed to the same. As 9 such he visited the said flat in the first week of January, 2008 and tried to open the door with the keys in his possession, but unfortunately he could not do so as it appeared that the Petitioner had changed the locks of the front door somewhere in January, 2008. He immediately informed one Col.Yadv of IHCL about this development and asked him to visit the said flat to check whether he could open the said flat with his set of keys. Colonel Yadav after visiting the flat informed him that even his set of keys did not work as he could not open the door of the said flat. 8. On February, 29, 2008 pursuant to an appointment with the Petitioner, the Responded No. 4 and Colonel Yadav visited the said flat to check the leakage and to assess the repairs which had to be done. The Petitioner was present in the flat and they inspected the leakage. At that time, Colonel Yadav asked the Petitioner whether she had changed the keys to the said flat, but she pretended that she had not heard him. Colonel Yadav was infuriated on seeing the plight of the said flat and moreover later informed Respondent No. 4 that the said IHCL had taken a very serious view of the fact that the locks of the said flat had been unilaterally changed by the Petitioner. He had also noted that Respondent No. 4 was not residing in the said flat. 10 Due to this episode, notice of termination of occupancy agreement was served upon him. Respondent No. 4 tried to contact the Petitioner but failed. Therefore, he requested Respondent No. 6 to grant two days time to remove all articles in the flat which was acceded to by IHCL. It is thereafter Respondent No. 4 handed over vacant and peaceful possession of the said flat to IHCL. According to Respondent No. 4, he informed the Petitioner that all her articles and belongings were safely packed and stored in a godown at Vashi. He requested the Petitioner to contact him at the earliest so that he could seek permission from IHCL to enter the said flat and retrieve her belongs from the cupboard which was locked. At the time of handing over possession to IHCL he has ensured that a proper inventory of all goods and items was drawn and the goods were carefully and separately packed, especially those belongings to the Petitioner and this fact was communicated by him to the Petitioner as far back as on 18th March, 2008. Reference is then made to various provisions and the directions issued by the learned Judge in Notice of Motion No. 1280 of 2008 and the order passed on 6.5.2008. . In Para 13, it is specifically averred as under : 11 "13............. I specifically deny that the Petitioner had offered to give a copy of the new front door keys to me, which was not taken by me, therefore, the question of me not taking the keys cannot and does not arise." . It is denied that the value of the articles listed works out to the figure set out in the plaint or petition. The Respondent No. 4 has specifically denied that he had broke open the locks of the front doors and that any offence under Domestic Violence Act as alleged has been committed by Respondent No. 4. A reply has also been filed by Respondent No. 5 and 6. In the same it is pointed out that the articles of the petitioner had been safely packed pursuant to inventory in the presence of a Notary and stored at a godown at New Bombay. The Respondent No. 1 it is contended has conducted preliminary enquiry in respect of her complaint. The Respondent Nos. 5 and 6 have fully cooperated with the preliminary inquiry conducted by Respondent No. 1 and have provided all the information desired by them as far back as in April, 2008. 9. A reply has also been filed on behalf of the State by respondent by Mr. Sudhir Mali, Police Inspector, Gamdevi Police Station, Mumbai. It is 12 contended that after the Petitioner filed a complaint, an enquiry was conducted and the Petitioner was called upon to give her statement and she corroborated the facts narrated in her application. Respondent No. 4 was thereafter called to police station and his statement was recorded. What transpired during the enquiry is then set out. According to him after recording the statements of the Petitioner and Respondent No. 4, he had come to the conclusion that no case is made out under the provisions of Indian Penal Code and hence, no F.I.R. has been registered against the Petitioner or her husband. 10. On behalf of the Petitioner, the learned counsel submits that there has been failure by Respondent Nos. 1 to 3 in acting on the complaint and registering F.I.R. though the Petitioner has made out a case of offences punishable under Section 341, 379, 380, 403 and 451 of the Indian Penal Code. It is set out that the Senior Inspector of Police, Gamdevi Police Station has not been acting on the complaints on account of pressure of Respondent Nos. 4, 5 and 6. 11. Once the Petitioner had established that she has keys to the house and the case of Respondent No. 4 was that he did not have the keys of the house, 13 and he had left the said house since August, 2006, the breaking open and entering into the premises and removing the belongings prima facie would disclose various offences as cited. Inspite of that Respondent No. 1 has taken no steps to investigate the complaint. In the judgment of the Supreme Court judgment of the Supreme Court judgment of the Supreme Court in Pratibha Rani Versus Suraj Kumar, 1985 (2) SCC in Pratibha Rani Versus Suraj Kumar, 1985 (2) SCC in Pratibha Rani Versus Suraj Kumar, 1985 (2) SCC 370 the Supreme Court has observed that remedies 370 the Supreme Court has observed that remedies 370 the Supreme Court has observed that remedies under the civil law and criminal law essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. If the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would not bar prosecution under Section 406 IPC and would not render the ingredients of Section 405 IPC nugatory or abortive. It is not necessary to refer to various facts in the judgment. . A learned Single Judge of the Delhi High Court in Kishan Chand Versus State, 1984(2) Crimes 827 Kishan Chand Versus State, 1984(2) Crimes 827 Kishan Chand Versus State, 1984(2) Crimes 827 observed that when husband in the absence of the that when husband in the absence of the that when husband in the absence of the wife wife wife takes away all the articles and shifts to 14 another premises, an offence would be disclosed the exclusive property of one of the spouses is unwarrantedly taken away or misappropriated by the other, and the marriage breaks down, it will not be correct to have a rigid approach divorced from facts and circumstances of each case to hold that the offence of misappropriation or theft can not be made out. In other words, even in case of husband and wife, their acts can still amount to misappropriation or theft. 12. Learned counsel for the Respondent No. 4 points out that the complaint does not disclose any prima facie evidence to allow Respondent Nos. 1 to 3 to investigate the matter. The allegations in the complaint would not make out the case of theft or any of the alleged offences. In these circumstances, the act of Police Officer in not registering an F.I.R. can not be said to be arbitrary or failure to discharge his duties. Reference is made to the judgment in Chandikumar Vs. Reference is made to the judgment in Chandikumar Vs. Reference is made to the judgment in Chandikumar Vs. Abanidhar Roy, AIR 1965 SC 585. It is no doubt true Abanidhar Roy, AIR 1965 SC 585. It is no doubt true Abanidhar Roy, AIR 1965 SC 585. It is no doubt true that the said judgment discusses various issues more specifically the bona fide claim or right and when the claim is made in good faith. We must however, remember that in that case the appeal was preferred to the Supreme Court against the final order. Similarly reference made to the judgment in Vijay Similarly reference made to the judgment in Vijay Similarly reference made to the judgment in Vijay 15 Kumari Verus S.M.Rao, AIR 1996 SC 1058 where the Kumari Verus S.M.Rao, AIR 1996 SC 1058 where the Kumari Verus S.M.Rao, AIR 1996 SC 1058 where the Supreme Court held that in that case, the complainant teacher was a licencee of room in hostel, would not have a right to live after termination of licence and as such the school authorities cannot be charged for wrongfully restraining her from entering to the said room. Again it should be noted that this was against the final judgment. 13. On behalf of Respondent Nos. 5 and 6 their learned counsel submits that the complaint at this stage prima facie does not disclose any offence against Respondent Nos. 4, 5 and 6 or for that matter against Respondent No. 7. In these circumstances, Respondent Nos. 1 to 3 were right in not proceeding with the complaint. . The learned A.P.P. supports the stand taken by the other respondents to contend that there is no offence disclosed warranting registering of an F.I.R. 14. In our opinion, the controversy is narrow though we have set out the facts in extenso. Prima facie from the material on record and the stand of the Petitioner and Respondent Nos. 5 and 6, the 16 keys of the said flat were changed. The date is in dispute. But that is immaterial. Admittedly Respondent Nos. 4 and 5 were aware that the Petitioner had changed the lock. It is the case of Petitioner that the Petitioner had asked him to take keys which Respondent No. 4 did not take. This is denied by Respondent No. 4. In other words, the premises were in the occupation of the Petitioner. Consequently the Petitioner alone was residing in the premises at least since January, 2008. 15. The other aspect of the matter is that the case of Respondent No. 4 is that the articles lying in the house belonging to the Petitioner, have been shifted by him to the godown and the Petitioner has been so informed. In so far as things lying in the cupboard, Respondent No. 4 left it remained in the premises. 16. Considering the material on record we find that Respondent No. 1 made no attempt to find out whether the articles as contained in the annexure to the complaint were found at the place they had been transported in the warehouse or godown or are lying in the cupboard. The action of Respondent No. 1 has been if the expression is to be used is that of mute spectator acting at the instance of some interested parties. Whatever may be the dispute 17 between Petitioner and Respondent No. 4, admittedly according to Respondent No. 4 himself he had left the premises in August, 2006 and therefore, had filed petition in 2007 for nullity of marriage. The Respondent No. 4 admits that the lock of the premises was changed and that he had no keys to enter the premises. At the time the premises was opened and her articles removed, the Petitioner was not in the premises or for that matter in India. The Respondent No. 1 seems to be totally oblivious to these facts. 17. In our opinion, this was not a case which could have been brushed aside even though it is a dispute between husband and wife i.e. Petitioner and Respondent No. 4. The very fact that Respondent No. 4 has filed a proceedings for nullity of marriage against the Petitioner being M.J. Petition No. A 210 of 2007 would be an indicative of relationship between two not being good. . In these circumstances it was the principal duty of Respondent No. 1 to have made further enquiries and investigation and thereafter to take steps which he would be entitled to in law. The action therefore, of Respondent No. 1 and the failure by Respondent Nos. 2 and 3 to our mind shows failure by these respondents in acting on the complaint 18 against Respondent No. 4. 18. In so far as Respondent Nos. 5, 6 and 7 in our opinion, considering the case of Respondent No. 4, as he has handed over the premises to Respondent Nos. 5, 6 and 7, at this stage we find no material against Respondent Nos. 5, 6 and 7. 19. It may also be mentioned that the premises were taken from Respondent No. 6 on leave and licence. The Petitioner before that was residing in