Bombay High Court
Sheena Lakhani vs The State Of Maharashtra on 12 March, 2021
Bench: S.S. Shinde, Manish Pitale
1/8 01 Cri. WP-6111.19 (09-03-21) J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.6111 OF 2019
Sheena Lakhani, ]
Flat No.305, Sai Sapphire CHS, Powai ]
Vihar Complex, Powari - 400 076. ] ... Petitioner
Versus
1. The State of Maharashtra ]
(At the instance of Amboli Police ]
Station in C.R. No.371 of 2019). ]
2. Sadanad Krushna Surve ]
R/at: 302, Saideep Co-op. Hsg. ]
Soceity, Near Bharati Park, Mira ]
Road (East), Thane - 401 107. ] ... Respondents
...
Mr. Ashish Deep Verma i/b Mr. Vijay S. Thakur for the
petitioners.
Mr. J.P. Yagnik, A.P.P. for respondent-State.
...
CORAM : S.S. SHINDE &
MANISH PITALE, JJ.
RESERVED ON : 09TH MARCH, 2021
PRONOUNCED ON : 12TH MARCH, 2021.
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JUDGMENT :- [Per: Manish Pitale, J.]
1. Rule. Rule made returnable forthwith. With the consent of
the rival parties, heard finally.
2. By this writ petition, the petitioner has prayed for quashing
of the First Information Report ("FIR") and the charge-sheet.
The FIR bearing C.R. No.371 of 2019 dated 02/10/2019 is
registered against the petitioner at Amboli Police Station for
offences under Sections 353, 186, 427 and 506 of the Indian
Penal Code ("IPC"). Pursuant to the investigation initiated on
the said FIR, the charge-sheet came to be filed in the court of
Metropolitan Magistrate, 66th Court at Andheri, Mumbai.
3. Respondent No.2, a junior supervisor of the Brihanmumbai
Municipal Corporation ("BMC") had lodged a complaint leading
to the registration of the FIR.
4. The petitioner is a Non Resident Indian from Canada
holding an Overseas Citizen of India Card. As per the complaint
lodged by respondent No.2, the said respondent was on election
duty at the relevant time on 01/10/2019 when the alleged
incident is said to have occurred. According to respondent No.2,
when he was on duty, in the context of ensuing election and
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barricading was done, the petitioner approached in her car and
she was asked to stop her vehicle for checking. But, the petitioner
allegedly did not cooperate with respondent No.2 and others on
election duty and, instead, she said that she had nothing to do
with the election and in this situation, she was allowed to leave.
5. It is alleged that thereafter, at about 1.50 a.m. on
02/10/2019, the petitioner returned with two persons on a
motorcycle and aggressively went towards Kasim Javed, a
videographer with the team led by respondent No.2. It is alleged
that she not only physically pushed said Javed but also took
possession of the video camera. She was told that the camera was
being used for election duty but, the petitioner was not listening
to the police personnel on duty including the lady police at the
spot. Even when the two persons, who had come with the
petitioner asked her to return the camera, she did not do so.
When respondent No.2 tried to reason with the petitioner that if
she had any problem, she should approach the local police, the
petitioner allegedly behaved in an aggressive manner with
respondent No.2 and she took out the memory card from the
video camera thereby causing damage to the camera. It was
alleged that thereafter, help was sought by dialing 100, when lady
police personnel came from Amboli Police Station and the
petitioner was taken to the police station and the complaint of
respondent No.2 came to be registered. It is on the basis of this
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complaint that the aforesaid FIR stood registered against the
petitioner.
6. During the course of investigation, statements were
recorded including that of respondent No.2. The said statements
were similar to the statement on the basis of which the FIR was
registered. The statement of the said Javed was also recorded,
which was on the same lines as that of respondent No.2. On
completion of the investigation, charge-sheet was filed against the
petitioner.
7. Mr. Verma, learned counsel appearing for the petitioner
submitted that registration of offences in the present case against
the petitioner was misconceived because even if the statements of
respondent No.2 and other alleged witnesses were to be
considered, it was clear that the said Javed could not be said to be
a public servant. It was evident from the material on record that
the said Javed was a private person engaged on contract for
videography during the election period. On this basis, it was
submitted that the sine-qua-non for registering offences under
Sections 186 and 353 of the IPC was absent and, therefore, the
said offences could not have been registered against the petitioner.
As regards other offences, apart from denying the incident in
question, it was submitted that the alleged offences were non-
cognizable in nature. On this basis, learned counsel appearing for
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the petitioner submitted that the FIR and the charge-sheet
deserved to be quashed. Reliance was placed on the judgments of
this court in the case of Aniruddha s/o. Ganesh Pathak v. State
of Maharashtra1, Kundan s/o. Khanderao Dhande v. Vasudeo s/
o. Nivruti Fegde2 and order passed by the Madras High Court in
the case of Jayaseeli v. State3.
8. On the other hand, Mr. Yagnik, learned A.P.P. appearing for
the State submitted that the ingredients of the offences were made
out in the complaint and, therefore, there was no substance in the
contentions raised on behalf of the petitioner. It was submitted
that the person, who was assaulted by the petitioner was
performing election duty on the instructions of the public servant
and, therefore, the offences were correctly registered against the
petitioner. It was submitted that since the charge-sheet was now
filed pursuant to completion of investigation, this court ought not
to interfere with further proceedings in the matter.
9. Having heard learned counsel appearing for the rival parties
and considering the offences alleged against the petitioner, we are
of the opinion that the basic requirement of registration of
cognizable offences under Sections 186 and 353 of the IPC is
absent in the case. There can be no doubt about the fact that for
registration of offences under the said provisions, the person who
1 Judgment dated 21/11/2009 in Criminal Application No.2219 of 2008
2 Judgment dated 25/10/2016 in Criminal Application No.4527 of 2016
3 Order dated 02/02/2010 in Criminal Revision Case No.190 of 2008
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has been obstructed from discharging his or her function has to
have the status of a public servant. In the present case, although
the complaint is lodged by respondent No.2, who would qualify
as public servant, being a junior supervisor in the BMC and
performing election duty, the person who was allegedly assaulted
viz. Javed is admittedly a private person engaged only on contract
of videography in the context of the election that was to take
place. Neither the complaint leading to registration of the FIR
nor the statements made by the alleged witnesses indicate that the
said Javed could be said to be a public servant. We have perused
the entire material brought on record along with the charge-sheet
but, there is nothing on record to show that the said Javed is a
public servant. It becomes evident from the material on record
that the said Javed, who was engaged on contract for undertaking
videogrpahy, by no stretch of imagination, can be said to be a
public servant. The contention of learned A.P.P. that since he was
working on behalf of the public servant, the ingredients of the
said offences are made out, is not acceptable in the facts of the
present case.
10. Sections 186 and 353 of the IPC read as follows:
"186. Obstructing public servant in discharge
of public functions-- Whoever voluntarily
obstructs any public servant in the discharge of
his public functions, shall be punished with
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imprisonment of either description for a term
which may extend to three months, or with fine
which may extend to five hundred rupees, or
with both.
353. Assault or criminal force to deter public
servant from discharge of his duty.--Whoever
assaults or uses criminal force to any person
being a public servant in the execution of his
duty as such public servant, or with intent to
prevent or deter that person from discharging
his duty as such public servant, or in
consequence of anything done or attempted to
be done by such person in the lawful discharge
of his duty as such public servant, shall be
punished with imprisonment of either
description for a term which may extend to two
years, or with fine, or with both."
11. Bare perusal of the aforesaid provisions would show that the
fundamental requirement for applying the said provisions is that
the person obstructed from performing duty has to be a public
servant. Since this requirement is not satisfied in the present case,
the offences under the said provisions could not have been
registered against the petitioner. Even if it was to be accepted that
the incident as alleged, had happened, all other offences alleged
against the petitioner are non-cognizable in nature. In the face of
these facts, the FIR and the charge-sheet in the present case
deserve to be quashed.
12. Apart from this, the nature of complaint filed by respondent
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No.2 does not divulge physical force applied by the petitioner
against respondent No.2. Therefore, learned counsel for the
petitioner is justified in relying upon the judgments cited above.
In view of the above, we are of the opinion that the petitioner has
made out a case for grant of relief as prayed in the present writ
petition. Accordingly, the writ petition is allowed. FIR bearing
C.R. No.371 of 2019 dated 02/10/2019 registered at Amboli
Police Station and the charge-sheet arising out of the aforesaid
FIR filed before the Metropolitan Magistrate, 66th Court at
Andheri, Mumbai are quashed.
13. Rule made absolute in the above terms. Writ petition is
disposed of accordingly.
(MANISH PITALE, J.) (S.S. SHINDE, J.)
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