Two FIRs against one housing society, one for stolen lamps and one for stopped plumbers, both quashed

Justice Ranjitsinha Raja Bhonsale quashed theft and wrongful restraint cases brought against members and staff of a Navi Mumbai society, holding both were offshoots of a civil dispute over maintenance and encroachment.

A businessman who owns seventeen shops and an entire wing of a Navi Mumbai housing society told the police that eight lamps and their iron poles, worth ₹16,000, had been stolen from the society's parking deck. The police registered a case of theft against two members of the managing committee. The poles were never missing. When the police inspected the site, the items were in the society's own premises, where the committee had put them under a resolution of its general body. The Bombay High Court has quashed the case.

What the complaint said

In 2007 Vinay Sudarshan Gupta bought seventeen shops and the whole of B Wing of Om Shiv Darshan Co-operative Housing Society, on Plot No. 1, Sector 15, CBD Belapur. He says he also owns commercial parking on the first floor. He is not a member of the society. A caretaker manages the property for him, part of it is let out on leave and licence, and he runs an office from Shop Nos. 1 and 2.

He had fixed lamps on iron poles to the protective wall of the first-floor parking area so that his shop signboard could be seen at night. On 12 July 2021 his caretaker told him the lamps and poles had gone. According to the complaint, his own CCTV showed two or three unidentified men removing them at about 1.30 p.m. the previous day. Work kept him from going to the police until 24 July, when he lodged a first information report alleging the theft of eight lamps with iron pipes worth ₹16,000.

The case was registered at NRI Sagari police station under Sections 379 and 34 of the Indian Penal Code. A chargesheet followed and was numbered RCC No. 65 of 2022 before the Judicial Magistrate First Class at Vashi. It accused Sandeep Dasgupta and Rakesh Sinha, members of the society's managing committee, of having the men remove the items.

What the society had been dealing with

Justice Ranjitsinha Raja Bhonsale read the complaint alongside the dispute that preceded it.

The society alleged that the complainant had encroached on common areas, made unauthorised alterations and constructions, and blocked the fire-exit route in A Wing on the first floor. It also alleged that he owed ₹34,16,323 in maintenance as of 17 August 2021. He disputes that figure, and the claim is pending before the Registrar of Co-operative Societies. The judge described this as, prima facie, the main dispute between the parties.

On 14 June 2021 an extraordinary general body meeting passed a series of resolutions aimed at him by name. One of them authorised the managing committee to remove and seize, with or without notice, any unauthorised installations or fixtures on the society's common property, areas or walls, whether put there by a member, by the complainant or by any tenant. After due notice, the committee could dispose of the seized articles as it saw fit.

The correspondence that followed was set out in the judgment. On 21 June the society complained to the Commissioner of Police about the complainant dumping garbage, misbehaving with women members and provoking violence on the premises. On 16 July it wrote to him asking him to remove debris piled under B Wing and spread across A Wing and the driveways, along with wooden structures and glass sheets, by 5 p.m. on 23 July. It made a separate representation to the Commissioner the same day about the encroachments and about alleged intimidation by a police officer.

The decisive email is dated 24 July 2021, the day the complaint was filed. The society told him it had cleared truckloads of his debris and listed what it was holding, as identified by his own caretaker: nine sliding frames with glass, two sliding frames, five wooden gates with rusted iron, and eight rusted iron poles. He could collect them by giving a written undertaking that he would not refix them to the society wall without the committee's approval. If he did nothing by 5 p.m. on 31 July, the society would dispose of them.

Why it was not theft

The spot panchnama drawn up on 27 September 2021 found the articles allegedly stolen lying inside the society premises. On the record, the judge held, the lamps, poles and signboard had been removed on the society's instructions for repair work and kept behind the society office.

Theft under Section 378 requires a movable thing to be taken out of someone's possession without consent, and the taking must be dishonest. Under Sections 23 and 24, dishonesty means an intention to cause wrongful gain to one person or wrongful loss to another. The taker's intention therefore decides whether moving property amounts to theft. Neither the complaint nor the chargesheet attributed any dishonest act to the petitioners. There was no allegation that either of them meant to gain anything personally or financially from the poles. They acted as committee members carrying out a general body resolution.

The judge added that even if the seizure had been improper for some reason, an improper seizure still does not amount to theft.

He also gave weight to the timing. The removal was on 11 July. The complaint came thirteen days later, on the same day the society told the complainant it had cleared his debris and was holding his property for collection. In between, the parties had been exchanging letters about maintenance, membership, encroachment and illegal construction. The judge found that the FIR appeared to be a counterblast to steps the society had taken, and that a civil dispute over membership and maintenance had been exaggerated into a criminal case against society members.

The second FIR: plumbers at the gate

On the same day, the same judge decided a second petition arising out of the same dispute in the same society, and quashed that case as well.

FIR No. 67 of 2022 was registered at NRI Sagari police station on 7 March 2022 under Sections 341 and 149 of the Penal Code, which cover wrongful restraint and unlawful assembly. It was filed by an employee of the same businessman, who said he had been told to install a new water connection to the shops. On 15 January 2022 the employee and three plumbers were stopped at the gate. They entered through a different entrance and began laying pipe, and the society's manager, its security staff and several members gathered and stopped the work. When they returned on 5 March, they were refused entry again. Seven people were eventually charged in SCC No. 3720 of 2022 before the Vashi magistrate: four residents, including a 66-year-old retiree and a housewife, the society manager, a 24-year-old security supervisor and a 19-year-old guard.

The judge noted that the society had emailed the police on 15 January itself, reporting that four unknown people had entered without permission. They had not checked in through the society's MyGate security app and, according to the society, had tried to dig up the common parking area around the B Wing entrance. Nobody had told the society about the work or asked its permission. The municipal permission the complainant relied on, dated 7 January 2022, required the new connection to be carried out through the junior engineer of the department concerned, and that was not how the work was being done.

Wrongful restraint under Section 339 requires that the person obstructed had a right to go where they were heading. Its exception covers obstruction of a private way by someone who believes in good faith that they have a lawful right to obstruct it. The manager and the guards were doing their jobs on the instructions of members concerned about residents' security, and the judge found their conduct justifiable, bona fide and reasonable. Applying categories 1, 5 and 7 of Bhajan Lal, he held that the case should not continue. That petition was allowed too.

Order

In the theft case, applying the categories set out by the Supreme Court in State of Haryana v. Bhajan Lal, the Court held that the allegations, even if accepted in full, disclose no offence under Section 379. It invoked its inherent power under Section 482 of the Code of Criminal Procedure to quash the FIR and the chargesheet pending before the Vashi magistrate, in the interest of justice and to prevent abuse of process. The petition was allowed. In the restraint case, Criminal Writ Petition No. 1859 of 2022, Rule was made absolute and FIR No. 67 of 2022 and SCC No. 3720 of 2022 were quashed.

The Court had issued Rule on 28 July 2023 and stayed the criminal proceedings. The parties tried to settle while the petition was pending, without success, and the petition was finally heard by consent. Mr Kartik Garg appeared for the petitioners, Ms Megha Bajoria, Additional Public Prosecutor, for the State, and Ms Sonam Pandey for the complainant. The judgment was reserved on 7 August 2026 and pronounced on 12 October. The maintenance dispute is still before the Registrar.