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CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2889 OF 2023
JUDGMENT
1. Govind Kakuram Kataria ] Age 62 years, Occupation: Business, ] R/a. Cenced Apartment, Flat No. B[2] ] Ambedkar Road, Near Bajaj Park, Bandra (W), ] Mumbai.
2. Sunny Govind Kataria ] Age 39 years, Occupation: Business, ] R/a. Ceneced Apartment, Flat No. B[2], ] Ambedkar Road, Near Bajaj Park, Bandra (W) ] Mumbai.
3. Kunal Govind Kataria ] Age 36 yeas, Occupation: Business, ] R/a Cenced Apartment, Flat No. B[2], ] Ambedkar Road, Near Bajaj Park, Bandra (W) ] Mumbai. ] … Petitioners V/s.
1. The State of Maharashtra ] (Through, Khar Police Station) ]
2. Dhanraj Rochiraj Sawlani ] Age 72 years, Occupation: Business, ] R/a 103, Lok Nariman Heights, ] Ambedkar Road, Khar West, Mumbai. ] … Respondents Ms. Poonam Ankleshwaria a/w Mr. Prathamesh Parkar & Ms. Atithi Abhay for Petitioners. Smt. Savita M. Yadav, A.P.P. for Respondent No.1-State. CORAM: A. S. GADKARI AND RAJESH S. PATIL, JJ. DATE: 12th June 2025.
JUDGMENT ( Per: A.S. Gadkari, J.):- 1) Petitioners have invoked jurisdiction of this Court under Article 226 of the Constitution of India for quashing of C.C. No.425/PW/2011 pending on the file of learned Metropolitan Magistrate, 9th Court, Bandra, Mumbai, arising out of C.R. No. 578 of 2010, dated 25th November 2010, registered with Khar Police Station, Mumbai, under Sections 325, 427, 504, 506 read with 34 of Indian Penal Code (I.P.C.).
2) Heard Ms. Poonam Ankleshwaria, learned Advocate for Petitioners and Smt. Savita M. Yadav, learned A.P.P. for Respondent No.1- State. Perused entire record.
2.1) Record indicates that, by an Order dated 6th October 2023, this Petition was admitted and interim relief in terms of prayer clause (b) was granted in favour of the Petitioners. By an Order dated 12th September 2024, after the amendment in the cause title, notice was issued to the Respondent No.2. As per the note put up by the Registry, the Respondent No.2 is duly served with the notice of the Petition. However, none appears for the Respondent No.2 when called out for hearing and therefore we have proceeded ex-parte against him.
3) Respondent No.2 has lodged present crime i.e. C.R. No. 578 of 2010 with Khar Police Station, Mumbai, on 25th November 2010, under Sections under Sections 325, 427, 504, 506 read with 34 of I.P.C..
3.1) Perusal of F.I.R. reveals that, the Respondent No.2 was conducting his business of property investment from the company i.e. Chirag Housing Limited, Loknirman Building, A-3 Wing, 1st Floor, Plot No. 104, Dr. Ambedkar Road, Khar, Mumbai. One room from the said office was given to INC Company, which was running international investment trading therefrom. That, Mr. Sanjay S. Manohar was working as a ‘Marketing Officer’ in the said company. Petitioner No.1 was acquainted with Respondent No.2. In the month of October 2010, the Petitioner No.1 had been to the office of Respondent No.2. The Petitioner No.1 wanted to do trading in gold and silver. The Respondent No.2 therefore introduced Petitioner No.1 with Mr. Sanjay S. Manohar and informed him to do trading through him. Accordingly, the Petitioner No.1 invested certain amount with the company of Sanjay S. Manohar. Due to the fluctuations in the market the Petitioner No.1 suffered losses. Therefore all the Petitioners had been to the office of the Respondent No.2 on 25th November 2010 at about 6:00 p.m. and demanded the losses suffered by them from the Respondent No.2. The Respondent No.2 therefore called Mr. Sanjay S. Manohar in his office and made the fact clear that, he had no concern with their inter se business. The Petitioner No.1 therefore demanded the said amount from Mr. Sanjay S. Manohar, however he could not pay it. The Petitioners felt enraged because of the same and they assaulted the Respondent No.2 and Mr. Sanjay S. Manohar with fists and kick blows. It is alleged that, the Petitioner No.1 assaulted Respondent No.2 on his face. That, the Petitioner Nos.[2] & 3 assaulted Mr. Sanjay S. Manohar on his nose with fists and pushed him. The Petitioners caused damage to the phone-box and computer by throwing it on the flooring. The Petitioners threatened the Respondent No.2 of dire consequences, if he did not compensate the losses suffered by them. The Respondent No.2 has named his four servants present in the office as witnesses to the incident. In this brief premise present crime is registered.
3.2) After completion of investigation the police have filed chargesheet in the Court of learned 9th Metropolitan Magistrate, Bandra, Mumbai and the same has been numbered as CC No.425/PW/2011.
4) Section 320 of Indian Penal Code defines ‘Grievous hurt’. The said Section is reproduced herein below for ready reference:- “320. Grievous hurt.- The following kinds of hurt only are designated as “grievous”;_ First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear. Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - 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.”
5) In the present case, Section 325 of I.P.C. is the only section which is cognizable and the other sections applied i.e. is Sections 427, 504, 506 of I.P.C. are non cognizable in nature.
6) The Medical Certificate dated 6th December 2010 issued in favour of Respondent No.2 by K. B. Bhabha Hospital, Bandra (W.), Mumbai, reveals that, he suffered the following injuries:-
(i) Fresh Abrasion - 0.[5] cm x 0.[5] cm - on lateral to left side angle of mouth.
(ii) Fresh Bruises - 2 cm x 2 cm - on behind the right ear.
(iii) 2.[3] Fresh scratch - each measuring 3 cm x 0.[1] cm - at the right side of mandible.
6.1) The Medical Certificate dated 6th December 2010 issued in favour of Mr. Sanjay Manohar by the same hospital mentions the following injuries:-
(i) Fresh Abrasion – 2 cm x 2 cm - at the back of right Elbow.
(ii) c/o Bleeding from nose.
7) It be noted here that, as far as history of bleeding from the nose narrated by Mr. Sanjay Manohar is concerned, there is no corroborative material at all on record to support the said allegation. It prima facie, appears that, the Respondent No.2 in the F.I.R. has nowhere stated that, Mr. Sanjay Manohar suffered a bleeding injury to his nose. Even otherwise the charge-sheet is absolutely silent about any corroboration to the allegation that, Mr. Sanjay Manohar suffered bleeding injuries to his nose. The Medical Certificate of Mr. Sanjay Manohar also indicates that, he was referred to ENT Department for advice from Surgical OPD (Outpatient Department). Record further indicates that, there is no medical report from the Surgical OPD Department of the concerned Hospital.
8) According to us, the injuries suffered by the Respondent No.2 and Mr. Sanjay Manohar do not qualify any of the ingredients of Section 325 of I.P.C. and therefore no offence as contemplated under Section 325 of I.P.C. is made out.
9) As noted earlier, the other offences are non-cognizable in nature and without permission being granted by the learned Magistrate under Section 155 (2) of Cr.P.C, the Investigating Officer would not be able to conduct investigation of the said offences.
10) We find force and substance in the submission of learned Advocate for Petitioners that, only to give a colour of cognizability, Section 325 of I.P.C. has been deliberately applied to the present crime.
11) As noted above, no prima facie case for application of Section 325 of I.P.C. is made out by the prosecution. In our opinion, continuation of prosecution against Petitioners will be sheer abuse of process of law and therefore the entire proceedings need to be quashed.
SHIVAHAR KUMBHAKARN