Holding

Directors and the architect cannot be held liable for wrongful restraint under s.341 IPC as they were not present nor performed any voluntary obstruction, and no vicarious liability attaches; therefore the summons is quashed.

Summary

The respondent, a practising advocate, filed a complaint alleging that the construction and tarring of a road by an architect (appellant No.6) at the direction of the managing director and other directors of a company (appellants No.1‑5) caused wrongful restraint to him and his parents in accessing their house. The trial court took cognizance under s.341 r/w s.34 IPC and summoned the directors and the architect. The appellants sought discharge of the summons under s.482 CrPC; the High Court dismissed the application. The Supreme Court held that the directors and the architect were not present at the site, did not perform any overt act, and therefore could not be held liable for "wrongful restraint"; the IPC does not impose vicarious liability on corporate officers unless expressly provided. Consequently, the summons was improper and the High Court’s order was set aside, quashing the summons.

Issues considered

The propriety of summoning the managing director, directors and architect under s.341 IPC for alleged wrongful restraint.
Whether vicarious liability can be attached to corporate officers for acts of workers under s.341 IPC.
The interpretation of "wrongful restraint" and the requirement of voluntary, direct obstruction under s.339 and s.341 IPC.
The discretion of the High Court under s.482 CrPC to dismiss the application for discharge of the summons.

Legislation cited

Code of Criminal Procedure, 1973s. 210, s. 255, s. 482
Companies Act, 1956
Indian Penal Code, 1860s. 339, s. 34, s. 341

Subjects

wrongful restraintvicarious liabilitydirectors liabilitySection 341 IPCSection 339 IPCSection 482 CrPCcriminal summonscorporate officersharassment

Judgment

[2009] 9 S.C.R. 183

KEKI HORMUSJI GHARDA AND ORS. A
v.
MEHERVAN RUSTOM IRANI AND ANR.
(Criminal Appeal No. 1015 of 2009)
MAY 13, 2009
B
[S.S. SINHA AND CYRIAC JOSEPH, JJ.]

Code of Criminal Procedure, 1973 - s.482 - Complaint
petition alleging criminal offence of causing wrongful restraint!
obstruction - A/legation that construction/tarring of road by C
appellant no. 6 at the instigation of appellants nos. 1 to 5
caused difficulties to respondent no. 1 and his parents in
ingress and egress to and from their house - Appellant no. 6
was an architect while appellant nos. 1 to 5 were Managing
Director and/or Directors of a company involved in legal D
proceedings with City Municipal Corporation and respondent
no.1 - Trial Court took cognizance under s.341 rlw s.34 /PC
and summoned the appellants - Application filed by
appellants under s.482 CrPC - Dismissal of, by High Court
- Propriety of - Held: Not proper- Appellants were not at the E
site and did not carry out any work - No overt act or physical
-~ obstruction on their part has been attributed - Only because
legal proceedings were pending between the Company and
City Municipal Corporation and/or with respondent no. 1, same
would not by itself mean that appellants were in any way F
concerned with commission of criminal offence of causing
obstructions to respondent no. 1 and his parents - Managing
Director and Directors of the Company should not have been
summoned only because some a/legations were made
against the Company - High Court failed to consider the fact
1 G.
that in a case of this nature the appellants would face
~
harassment although the allegations, even assuming to be
correct were trivial in nature - Order summoning the
appellants accordingly quashed - Penal Code, 1860 - s.339
183 H
184 SUPREME COURT REPORTS [2009] 9 S.C.R.

A and s.341 rlw s.34.·
Words and Phrases - 'Wrongful restraint' and 'voluntary'
- Meaning of- In context to ss.339 and 341 !PC.

Respondent no.1 filed complaint petition alleging that
B construction/tarring of road done by appellant no.6 at the
instigation of appellants nos.1 to 5 caused difficulties to
him and his parents in ingress and egress to and 'from
their house. Appellant ho.6 was an architect while
appellant nos.1 to 5 were Managing Director and/or
C Directors of a company involved in legal proceedings
with City Municipal Corporation and respc;mdent no.1.
The trial court took cognizance under s.341 r/w s.34 IPC
and· summoned the appellants. Appellants filed
application under s.482 CrPC which was dismissed by the
D High Court. Hence the present appeal.

Allowing the appeal, the Court

HELD :1. Section 341 IPC provides that whoever
wrongfully restrains any person, shall be punished with
E simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred
rupees, or with both. Wrongful restraint has been defined
under section 339 IPC, the essential ingredients of which
are: (1) Accused obstructs voluntarily; (2) The victim is
F prevented from proceeding in any direction; (3) Such
victim has every right to proceed in that direction. The
word 'voluntary' is significant. It connotes that
obstruction should be direct. The obstructions must be
a restriction on the normal movement of a person. It
G should be a physical one. They should have common
intention to cause obstruction. [Paras 11 and 12] ,[190-G-
H; 191-A-E]

2.1. In the present ca$e, the appellants were not at
H the site. They did not carry out any work. No overt act or
KEKI HORMUSJI GHARDA AND ORS. v. MEHERVAN 185
RUSTOM IRANI AND ANR.
physical obstruction on their part has been attributed. A
OnJy because legal proceedings were pending between
the Company and the Bombay Municipal Corporation
and/or with the first respondent, the same would not by
itself mean that appellants were in any way concerned
with commission of a criminal offence of causing B
obstructions to the first respondent and his parents.
Noticeably despite the said road being under
construction, the first respondent went to the Police
Station thrice. He, therefore, was not obstructed from
going to Police Station. In fact, a firm action had been c
taken by the authorities. The workers were asked not to

-
do any work on the road. One, therefore, fails to
appreciate that how, in a situation of this nature, the
Managing Director and the Directors of the Company as
also the Architect can be said to have committed an 0
offence under Section 341 IPC. [Para 13] [191-E-H; 192-
A] ..

2.2. Indian Penal Code, save and except some
matters does not contemplate any vicarious liability on
the part Qf a person. Commission of an offence by raising E
a legal fiction or by creating a vicarious liability in terms
of the provisions of a statute must be expressly stated.
The Managing Director or the Directors of the Company,
... thus, cannot be said to have committed an offence only
because they are holders of offices. The Magistrate, F
therefore, was not correct in issuing summons without
taking into consideration this aspect of the matter. The
Managing Director and the Directors of the Company
should not have been summoned only because some
allegations were made against the Company. [Paras 14 G
and 15) [192-A-D]

Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate
& ors. (1998) 5 sec 749, referred to.

3. Even as regards the availability of the remedy of H
186 SUPREME-COURT REPORTS [2009] 9 S.C.R.

A filing an ·application for discharge, the same would not
mean that although the allegations made in the Complaint
Petition even if given face value and taken to be correct
in its entirety, do not disclose an offence or it is found !Q
be otherwise an abuse of the p.rQ£~§~ Qf th~ (;p4rti ~till
B the High Court would refuse to exercise !~ ~j§gr~tipm~ry
jurisdiction under Section 4~~ <;rPC~ Thei:@ might Jl~ve
been some delay on the part pf tfle appefl;.ints in
approaching the High Court but while adju~ting equity
the High Court was required to take into consideratiQn
c the fact that in a case of this nature the appellants would
face harassment although the allegations contained in the
Complaint Petition even assuming to be correct were
trivial in nature. The High Court furthermore has failed to
take into consideration the fact that in th~ first
-
D informatiOn report no alle9~tion in regard to aots of
common intention or cornm.on object on the part of the
appellants was made out. Appellants were not named as
accused therein. It is, therefore, really difficult to
appreciate as to on what basis the Complaint Petition was
E "'filed. The order summoning the appellan.t is quashed.
[Paras 16, 17 and 18] [193-A-F] '
Case Law Reference:
(1998) s sec 749 referred to Para 15
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1015 of 2009.

From the Judgment & Order dated 16.6.2005 of the High
Court of Judicature at Bombay in Criminal Application No.
G 1359 of 2005.

· Shirish Gupta, Subodh Desai, Brajesh Pandey, A.S.
Bhasme for the Appellant.

Kumud Lata Das (NP) for the Respondent.
H
KEKI HORMUSJI GHARDA AND ORS. v. MEHERVAN 187
RUSTOM IRANI AND ANR.
The Judgment of the Court was delivered by A

- S.8. SINHA, J. 1. Leave granted.

2. First respondent is a practising advocate. He is a
resident of Gharda Villa, 1st Floor, situated at 48, Hill Road,
B
Sandra (West), Mumbai.
i,
Mis Gharda Chemicals Limited is a deemed public limited
company registered and incorporated under the Companies
Act, 1956. It has its registered office at 516, Jer Mansion, First
Floor, W.P. Varde Marg, Tuner Road, Sandra (West) in the c
town of Mumbai. Appellant No. 1 (Accused No. 1) is the
Chairman cum Managing Director of the said Company.
-- Appellants 2 to 5 are the Directors thereof and the Appellant
No. 6 is an Architect. It is stated that Appellants 1 and 3 are
no longer associated with the Company. D
Gharda Villa, in which the first respondent resides and the
prem,ises kn9wn as 'Khaiber Property' are adjacent to each
other. They were said to be belonging to Hormasji Dinshawji
Gharda since deceased. The Company is said to be the owner
\

of the property. Gharda House being an old building was E
required to be demolished and reconstructed. Several
proceedings, however, were initiated in respect of the said
-· building by the Bombay Municipal Corporation.
:""--

3. Father of the first respondent filed a suit in the year 1978 F
in his capacity as a tenant against the predecessor-in-interest
of the Company. An application for amendment of the plaint
was filed in the said suit on 17.4.1998. It is stated that the said
application for amendment was dismissed. An appeal allegedly

. was preferred thereagainst. An interim relief prayed for by the
first respondent in the said appeal is also said to have been
rejected. In regard to the proposed action on the part of the
Company to demolish and reconstruct the said building, the first
respondent had initiated various proceedings. Bombay
G

Municipal Corporation also issued a stop-work notice dated
H
188 SUPREME COURT REPORTS (2009] 9 S.C.R.

A 25. 7.1998, which was said to have been withdrawn on
21.5.1999. When repair work on the road upon removing the
debris lying on a portion of the land was started, a first
information report was lodged by the first respondent before
Sandra Police Station against the officers of the Company and
s the representatives of the Contractor. A charge sheet was also
filed before the Additional Chief Metropolitan Magistrate,. 9th
Court. Bam:Jra in that oase. However, after one month the first
respondent again filed a private complaint before the Additional
Chief Metropolit~m M~gistrate, 9th Court, Sandra in regard to
c the same incident wherein not only the original accused were
· made parties but also appellants were made accused Nos. 1
to 6. A verification statement was made by the first respondent
on 6.8.1999, the relevant portion whereof reads as under:

"On 06.06.1999 at about 10.00 a.m. Accused No. 8, 9
D along with worker§ of Accused No. 11, came on site along
with road roller and dumpers, and began putting hot sticky
. tar on the road Gardha Villa, I complaint to the Sandra
Police Statio.n Accused No. 8 was warned by the duty
officer of Sandra Police Station. To stop the work and get
E the clarification from the Small Causes Court. Though
Accused No. 8 assured to stop the work, he again, started
the tarring of the access to Gardha Villa I again went to
Police Station. And complained against it. Accused No.
7 and 8 were called to Police Station. And were warned
F that they will booked for wrongly red trained if they will
continuing the tarring the access road. Accused Nos. 7
and 8 assured to duty officer that they will stop the work,
when I returned from Police Station. I found that the work
was still continuing and accused No. 8 and 10 along with
G Accused No.11, were continuing the work, I lodged my
complaint at about 3:20 p:m. on 06.06.1999 and my FIR
was register under C.R. No. 257/1999 and accused Nos.
7 to 1O were arrested for wrongful restrained U/Sec. 341
. IPC, 34 IPC and was subsequently released on bail. The
driver's of Accused No. 11 was also detained by Sandra
H
' KEKI HORMUSJI GHARDA AND ORS. v. MEHERVAN 189
~
RUSTOM IRANI AND ANR. [S.S. SINHA, J.]

Police Station. At about 5:00 p.m., Accused No. 11 came A
~
' on site and requested him to assist him to release the
driver, which I refused to do so. Ultimately he manage to
release the driver. The access from the hill road to Gardha
Villa is only access road to Gardha Villa because of putting
hot sticky tar on the existing road on hill road and Gardha B
Villa I and my brother wrongfully restrained from going to
Gardha Villa for several hours. My aged parents who were
in the house, also restrained for going out the road.
Accused Nos. 1 to 5 manage the affairs of Gardha
Chemicals had instigated accused No. 6 to construct the c
road. Hence my complaint against accused No. 1 to 11. I
am producing the copy of the FIR lodged the Sandra P.
Stn.''

4. Relying on or on the basis of the allegations made in
the Complaint Petition as also the said Verification Statement, D
cognizance of an offence under Section 341 read with Section
34 of the Indian Penal Code (for short, "the IPC") was taken ..
Appellants were summoned as accused by an order dated
06.08.1999.
E
5. Before the learned Additional Chief Metropolitan an
application under Section 210 of the Code of Criminal
~ Procedure, 1973 (for short, "the Code") was preferred by the
first respondent since both the cases arose out of the same
incident/cause of action, which by an order dated 6.5.2004 was F
allowed.

6. Appellants filed an application under Section 482 of the
Code which by reason of the impugned judgment and order
dated 16.6.2005 has been dismissed, opining that the same
was grossly delayed and the allegations made in the Complaint G

• Petition in regard to accused Nos. 1 to 5 and 12, if proved
would amount to commission of a criminal offence. Appellants,
however, was granted liberty to raise all contentions at the trial
in terms of Section 255 of the Code.
H
190 SUPREME COURT REPORTS [2009] 9 S.C.R: · '
t-

A 7. Appellants are, thus, before us.

8. The Complaint Petition is a detailed one. It discloses .....
disputes between the parties as also various proceedings
initiated against the Company by the Bombay Municipal
Corporation.
B
9. Indisputably, the dispute arose. in regard to construction/
tarring of the road by reason whereof, the first respondent might
have faced difficulties in ingress and egress to and from his
house for a short while. However, evidently, first respondent
c went to the Police Station and made a complaint thereabout.
The work was stopped for some time, but allegedly the same
was started again. Accused Nos. 7 and 8 were called to Police
I
Station. However, first respondent again went to Police Station ......
to lodge a first information report after he allegedly found that
D the work had been continuing. Allegations at that point of time
were confined to Accused Nos. 8, 9 and 11 at the first stage
and to Accused .Nos. 8, 10 and 11 at the second stage.
Accused Nos. 7 to 10 were workers of the Company. They
were arrested. They were, however, granted bail.
E
10. It is in the aforementioned backdrop of events, the
statement made by the first respondent that accused Nos. 1 to -
5 were managing the affairs of the Company and had
instigated accused No. 6 to construct the road must be viewed.
,.
F 11. It is one thing to say that the Company had asked the
accused No. 6 to make construction but only because the
accused Nos. 1 to 5 were its Directors, the same, in our
opinion, would not be sufficient to fasten any criminal liability
on them for commission of an offence under Section 341 of the
G IPC or otherwise.
'Wrongful restraint' has been defined under Section 339 ,..,
...,..._
of the IPC in the following words:

"339. Wrongful restraing - Whoever voluntarily obstructs
H
KEKI HORMUSJI GHARDA AND ORS. v. MEHERVAN 191
RUSTOM IRANi AND ANR. [S.B. SINHA, J.]
ahy person so as to prevent that person from proceeding A
.!
in any direction in which that person has a right to proceed,
is said wrongfully to restrain that person.

Exception.- The obstruction of a private way over land or
water which a person in good-faith believes himself to have
B
a lawful right to obstruct, is not an offence within the
meaning of this Section."
..,
The essential ingredients of the aforementioned provision
are: (1) Accused obstructs voluntarily; (2) The victim is
prevented from proceeding in any direction; (3) Such victim has c
every right to proceed in that direction.

... 12. Section 341 of the IPC provides that whoever wrongfully
restrains any person, shall be punished with simple
imprisonmen.t for a term which may extend to one month, or with D
fine which may extend to five hundred rupees, or with both. The
word 'voluntary' is significant. It connotes that obstruction should
be direct. The obstructions must be a restriction on the normal
movement of a person. It should be a physical one. They should
have common intention to cause obstruction.
E
13. Appellants herein were not at the site. They did not
carry out any work. No overt act or physical obstruction on their
part has been attributed. Only because legal proceedings were
" pending between the Company and the Bombay Municipal
Corporation and/or with the first respondent herein, the same F
would not by itself mean that appellants were in any way
concerned with commission of a criminal offence of causing
obstructions to the first respondent and his parents. We have
noticed hereinbefore that despite of said road being under
construction, the first respondent went to the Police Station G
thrice. He, therefore, was not obstructed from going to Police
Station. In fact, a firm action had been taken by the authorities.
•
'{

The workers were asked not to do any work on the road. We,
therefore, fail to appreciate .that how, in a situation of this nature,
the Managing Director and the Directors of the Company as H
192 SUPREME COURT REPORTS [2009) 9 S.C.R.

A also the Architect can be said to have committed an offence
under Section 341 of the IPC.

14. Indian Penal Code, save and except some matters
does not contemplate any vicarious liability on the part a person.
Commission of an offence by raising a legal fiction or by
B
creating a vicarious liability in terms of the provisions of a
statute must be expressly stated. The Managing Director or the
/ Directors of the Company, thus, cannot be said to have
committed an offence only because they are holders of offices.

c 15. The learned Additional Chief Metropolitan Magistrate,
therefore, in our opinion, was not correct in issuing summons
without taking into consideration this aspect of the matter. The
Managing Director and the Directors of the Company should
not have been summoned only because some allegations were
D made against the Company. ,.
In Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate
& ors. (1998) 5 sec 749, this Court held as under:

"28. Summoning of an accused in a criminal case is a
E serious matter. Criminal law cannot be set into motion as
a matter of course. It is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The i-

order of the Magistrate summoning the accused must
F reflect that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed in
G bringing charge home to the accuse<;!. It is not that the
Magistrate is a silent spectator at the time of recording of )

preliminary evidence before summoning of the accused.
The Magistrate has to carefully scrutinize the evidence
brought on record and may even himself put questions to
H the complainant and his witnesses to elicit answers to find
KEKI HORMUSJI GHARDA AND ORS. v. MEHERVAN 193
RUSTOM !RANI AND ANR. [S.B. SINHA, J.]

. 1; out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or
any of the accused."
A

16. Even as regards the availability of the remedy of filing
an application for discharge, the same would not mean that B
although the allegations made in the Complaint Petition even
if given face value and taken to be correct in its entirety, do not
{·
disclose an offence or it is found to be otherwise an abuse of
the process of the Court, still the High Court would refuse to
'I
'· exercise its discretionary jurisdiction under Section 482 of the
Code of Criminal Procedure. Indisputably, there might have
c
been some delay on the part of the appellants in approaching
the High Court but while adjusting equity the High Court was
required to take into consideration the fact that in a case of this
nature the appellants would face harassment although the
allegations contained in the Complaint Petition even assuming D
to be correct were trivial in nature. The High Court furthermore
has failed to take into consideration the fact that in the first
information report no allegation in regard to acts of common
intention or common object on the part of the appellants was
made out. Appellants were not named as accused therein. E

17. It is, therefore, really difficult to appreciate as to on what
,.
' basis the Complaint Petition was filed.
'
18. For the reasons aforementioned, the impugned
F
judgment and order of the High Court is set aside. The appeal
is allowed. The order summoning the appellant is quashed.

B.B.B. Appeal allowed.