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Bombay High Court

RAFIQ AHMED DADAversusTHE STATE OF MAHARASHTRA AND ANR

Decided
Disposal
Disposed Off

Holding

The court held that the order issuing criminal process was unwarranted because the dispute was civil, the magistrate failed to apply mind to the record, and therefore the order was quashed.

Summary

The petitioners, trustees of the Jaffer Suleman Musafirkhana Trust, challenged a magistrate's order dated 16‑11‑2009 that issued criminal process against them under various IPC sections for alleged misappropriation of cash and a gas cylinder during the execution of a civil eviction decree. The dispute originated from a tenancy conflict over Room No.1 in Khare Sadan Building, where the respondent, Ms. Asha Gachke, claimed sub‑let rights and alleged that the bailiff’s inventory omitted Rs 32,000 and a gas cylinder. The High Court held that the matter was essentially a civil dispute concerning possession and tenancy, that the magistrate had not applied a proper mind to the facts, and that invoking criminal proceedings was an abuse of process. Consequently, the order issuing process was quashed and the writ petition was allowed. The court also directed that the pending civil proceedings before the Small Causes Court continue unaffected.

Issues considered

  • Whether criminal proceedings under the IPC can be maintained when the underlying dispute is purely civil in nature.
  • Whether the High Court may exercise its inherent jurisdiction under Section 482 of the CrPC to quash the criminal process.
  • Whether the magistrate erred in issuing process without verifying the bailiff’s inventory and the factual allegations.
  • Whether the actions of the court bailiff constitute an offence attracting the IPC provisions.
  • Whether the petitioners, as trustees, can be held liable as accused in the criminal complaint.

Legislation cited

Subjects

  • civil dispute
  • criminal proceedings
  • inherent jurisdiction
  • Section 482 CrPC
  • tenancy
  • eviction
  • abuse of process
  • bailiff
  • process issuance
  • Small Causes Court

Judgment

                                                               WP.1045.2010.doc

Ajay

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO. 1045 OF 2010
                                  WITH
                   INTERIM APPLICATION NO. 2244 OF 2026

       Jaffer Suleman Musafirkhana Trust & Ors.         .. Petitioners
                  Versus
       The State of Maharashtra & Anr.                  .. Respondents
                                   ....................
        Mr. Manish Rai, Advocate for Petitioner Nos. 1 & 4
        Mr. Manoj Mohite, Senior Advocate a/w Mr. Narayan Sahu, Ms.
         Priyanka Chavan and Mr. Shrinivasan Mudaliar i/by M/s. Federal &
         Company, Advocates for Petitioner No. 3
        Ms. Asha Gachke, Respondent No. 2 (party in person)
        Ms. Rajeshree V. Newton, APP for Respondent - State
                                   ......…...........
                                  CORAM : MILIND N. JADHAV, J.
                                  DATE         : SEPTEMBER 17, 2026.
       P.C.:

       1.       Heard Mr. Rai, learned Advocate for Petitioner Nos. 1 and 4;

       Mr. Mohite, learned Senior Advocate for Petitioner No.3; Ms. Gachke -

       Respondent No 2 (party in person) and Ms. Newton, learned APP for

       Respondent - State.

       2.       Petitioners are challenging order dated 16.11.2009 in CC

       No.197/SW/2009 passed by Metropolitan Magistrate, 11th Court ,

       Kurla, Mumbai issuing process against the Petitioners under Sections

       380, 418, 420, 451, 504, 506, 506(II) 34 and 120(b) of the Indian

       Penal Code, 1860 (for short “IPC’). Copy of impugned order is

       appended at page No.54 of the Petition.


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3.        Briefly stated, CC No.197/SW/2009 was filed by Respondent

No.2 alleging commission of offences against Petitioners. Respondent

No.2’s case is that Room No.1 on ground floor located in Khare Sadan

Building, Kurla was sublet to her by one Vishnu Joglekar in the year

1982 and was in her possession since then. On 15.11.2004 the

Petitioner No.1 - Trust acquired Khare Sadan Building wherein

according to attornment Vishnu Joglekar was recorded as tenant in the

list of tenants. Thus, it is Petitioners’ case that Vishnu Joglekar could

not have transferred or sublet Room No.1 to Respondent No.2.

According to the record, Room No.1 belong to Mr. Menon and not

Vishnu Joglekar. The Khare family were erstwhile landlord of building

who transferred the building by registered Sale Deed to Trust in the

year 2004.


4.        According to Respondent No.2 and as argued vehemently by

her on basis of her written submissions which she has persuaded me to

consider. On 28.02.2007 some unidentified persons broke open the

lock on Room No.1, one of whom was Accused No.9 i.e. the Court

Bailiff for executing an order of decree of possession passed in favour

of Petitioner No.1 - Trust. Petitioner Nos.2 to 6 are Trustees of the

Trust. They are also arraigned as Accused persons. Petitioner No.2 died

on 19.01.2012. Petitioner No.3 resigned on 30.12.2020. Petitioner

No.4 is the present Trustee. Petitioner No.5 died on 17.11.2020.

Petitioner No.6 resigned on 23.02.2009. Petitioner No.7 is the original

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landowner of Khare Sadan Building. The Court Bailiff is arraigned as

Accused No.9.


5.        Case of Respondent No.2 is that when Room No.1 was broke

open the inventory made by Court Bailiff omitted mentioning one gas

cylinder and cash of Rs.32,000/- lying in the room. Hence, she

approached the Magistrate’s Court for issuance of process which was

granted vide order dated 16.11.2009, this is the subject matter of

challenge in the Petition.


6.        Mr. Mohite, learned Senior Advocate has taken me through

the facts of the case which can be briefly looked into for considering

the challenge of order dated 16.11.2009.

7.        It is seen that on 15.01.2004, the Trust acquired Khare

Sadan Building vide registered Sale Deed. According to Petitioners,

original tenants of the building on ground floor were Tara Joglekar,

Mr. Menon and Mrs. Tilekar out of whom Mr. Menon was occupant of

Room No.1 and Mrs. Tilekar was occupant of Room No.2 and Vishnu

Joglekar was tenant of Room No.3. The Khare family were the

signatories to the registered Sale Deed and aforesaid tenants were

attorned to the Trust hence according to Petitioners there was no trace

of Respondent No.2 or her presence.

8.        It is seen that Mr. Menon and Mrs. Tilekar vacated their

premises / rooms and handed over possession to Petitioners whereas



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Tara Joglekar who was occupant of Room No.3 did not vacate her

premises. The Petitioners filed RAE Suit bearing No.47/78 of 2005 qua

Room No.3 at the same time Respondent No.2 approached the Small

Causes Court seeking restoration of possession by filing Notice of

Motion No. 92 of 2007. Whereabouts of Tara Joglekar was not known

and after following due process of law, eviction decree was passed by

Small Causes Court which was executed by the Bailiff of the Court.

According to Petitioners, all this was done by following due process of

law. Judgment of Small Causes Court is dated 24.04.2006

9.        After that execution took place, Respondent No.2 therefore

filed application for issuance of process after filing a complaint against

Petitioners and two other accused persons namely landlord and Court

Bailiff in which the impugned order came to be passed by the learned

Magistrate on 16.11.2009.

10.       Before I proceed to adjudicate the matter on merits Mr.

Mohite, learned Senior Advocate in his usual fair mindedness informs

the Court that obstructionist proceedings in execution against

Respondent No.2 rather filed by Respondent No.2 are pending before

the Small Causes Court and they are at the stage of evidence. He

would submit that the outcome of the said proceedings will determine

the substantive right of Respondent No.2 in the subject room. He

would therefore submit that the order issuing process dated

16.11.2009 for the alleged offences which has been stayed by this

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Court should be therefore set aside and quashed since the lis between

the parties is purely civil in nature and will be determined by the Small

Causes Court. He would passionately submit that no criminality can be

attributed to Petitioners since Petitioners being decree holder were

executing the decree of the Small Causes Court by following due

process of law and the allegations of Respondent No.2 for seeking

issuance of process and criminality attributed to Petitioners cannot be

sustained in the facts and circumstances of the present case.


11.       Respondent No.2 has vehemently opposed the challenge to

the order issuing process dated 16.11.2009. She would draw my

attention to Affidavit-in-Reply / Written submissions dated 16.06.2026

placed on record. Copy of which is appended at page no.171 to 199 of

the Petition and would submit that he would submit that the present

Petition is nothing but an attempt to invoke the inherent jurisdiction of

this Court under Section 482 of the Cr.P.C. with the object of delaying

and obstructing the criminal proceedings pending before the Trial

Court, and that Petitioners have approached this Court without first

availing the efficacious statutory remedies available to them under the

Code. She would submit that Petitioners instead of appearing before

the Trial Court pursuant to the process issued against them, recording

their attendance and plea and complying with the consequential

formalities has chosen to directly invoke the extraordinary/inherent

jurisdiction of this Court and thereby seeks to circumvent the

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procedure prescribed by law. She would submit that such an

invocation of inherent jurisdiction cannot be permitted to become a

substitute for the remedies available to an accused before the Trial

Court, particularly when the criminal proceedings have already been

set in motion in accordance with law. She would submit that the

conduct of Petitioners clearly demonstrates that the present Petition

has been filed as a device to scuttle the investigation/prosecution and

to secure an interim protection without subjecting themselves to trial.

She would submit that the issuance of process by the Trial Court is not

an interlocutory order and that Petitioners ought not to be permitted to

misuse the inherent powers of this Court to bypass the statutory

proceedings and obtain orders without first submitting themselves to

the process of the Trial Court.


11.1.     She would submit that the contention of Petitioners that the

criminal proceedings ought to be terminated merely on account of the

nature or outcome of the connected civil proceedings is wholly

misconceived and cannot by itself furnish a ground for quashing the

criminal prosecution. She would submit that civil and criminal

proceedings may proceed simultaneously where the allegations

disclose the commission of a criminal offence and that the continuation

of   criminal   proceedings   would   depend    upon   the   facts   and

circumstances and the material available on record. She would submit

that the principle that criminal liability may cease upon the death of

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the accused upon a final acquittal or where proceedings are otherwise

found to be wholly abusive or devoid of the necessary ingredients of an

offence cannot be mechanically invoked in the present case. She would

submit that unless Petitioners demonstrates that the allegations even if

taken at their face value, do not constitute any offence or that the

continuation of the proceedings amounts to manifest abuse of the

process of law.


11.2.           In support of her arguments she has referred to and relied

upon the decision of the Supreme Court and Madras High Court in the

case of Satender Kumar Antil Vs. Central Bureau of Investigation1;

Krishnakumari Vs. The State of Tamilnadu and Others.2; Sugesan

Transport Pvt. Ltd vs The Assistant Commissioner Of Police 3; and Lala

Jairam Das Vs. King Emperor4.

11.3.           Respondent No.2 after taking me through Affidavit-in-Reply

has further placed before me key points of arguments dated

28.08.2026. Copy of which is appended to the Petition. She would

submit that the present Petition, insofar as Petitioner Nos. 1, 2 and 4 to

7 are concerned, deserves to be dismissed as they have remained

completely silent throughout the proceedings from restoration till the

stage of final hearing and have neither advanced oral submissions nor

filed any written submissions or interim arguments in support of their
1   (2022) 10 SCC 51
2   Crl.O.P.(MD).No.20545 of 2025, decided on 02.01.2026 by the Madurai Bench of Madras High Court
3   2016 SCC OnLine Mad 934
4   1945 AIR(PC) 94



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case. She would submit that their continued inaction demonstrates that

they are no longer interested in prosecuting the reliefs sought by them,

and therefore the Petition deserves to be dismissed qua the said

Petitioners with appropriate compensatory costs particularly as the

Respondent has been unnecessarily dragged into the litigation for the

last several years. She would submit that insofar as Petitioner No.3 is

concerned, the present proceedings constitute an impermissible

attempt to challenge the summons/process and the non-bailable

warrant by inviting this Court to undertake a roving enquiry into

disputed questions of fact and thereby conduct a mini-trial in

proceedings under Section 482 of the Cr.P.C. /Section 528 of the

BNSS. She would submit that the Petitioner No.3 has failed to avail

himself of the statutory remedies before the Trial Court and instead of

appearing before the Trial Court pursuant to the process issued against

him, recording his attendance and plea and seeking appropriate relief

in accordance with law, has directly approached this Court seeking to

invoke its extraordinary jurisdiction.


11.4.     She would submit that the Trial Court itself possesses the

requisite statutory jurisdiction to consider an application for recall or

cancellation of the non-bailable warrant upon Petitioner No.3 showing

sufficient cause for his previous absence and therefore the Petitioner

No.3 ought to be relegated to the jurisdiction of the Trial Court rather

than being permitted to circumvent the statutory procedure. She would

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submit that the allegations raised by the Petitioner No.3 regarding the

documents relied upon by the Trial Court, including the allegation

that the record contains false documents or that Room No.1 and Room

No.3 are the same premises, are disputed questions of fact which

cannot appropriately be adjudicated in the present quashing

proceedings. She would submit that the Petitioner No.3 attempt to

dispute the factual findings and circumstances surrounding his absence

before the Trial Court, rather than submitting himself to the

jurisdiction of the said Court and pursuing the remedies available to

him in law, amounts to an abuse of the process of law. She would

submit that in the aforesaid circumstances, no case is made out for

exercise of the inherent jurisdiction of this Court and the present

Petition therefore deserves to be dismissed, with costs.


12.       I have heard Mr. Rai, learned Advocate for Petitioner Nos. 1

and 4; Mr. Mohite, learned Senior Advocate for Petitioner No.3; Ms.

Gachke - Respondent No 2 (party in person) and Ms. Newton, learned

APP for Respondent - State. I have also considered the Affidavit-in-

Reply and key points of argument made by Respondent No.2 in person

as requested by her.


13.       At the outset it is seen that the facts placed before the Court

is clearly a civil dispute with respect to entitlement of Respondent No.2

to the subject Room in question, as to whether on the ground of her



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case as a sublette she would qualify as a tenant of the premises. The

order dated 16.11.2009 of issuing process is proceeded by Petitioners

by adopting and following the due process of law. As a consequence of

the decree passed in RAE Suit No.47/78 of 2005. Copy of which is

appended at Exhibit “G” and Respondent No.2 also having participated

therein, wherein she herself has expressed the dichotomy of the subject

Room being Room No.1 but called by the Plaintiffs (Petitioners) as

Room No.3, in such an imbroglio it is a clear matter of evidence.


14.       The order / decree of Small Causes Court is appended below

Exhibit “K” at page No. 98 of the Petition. Execution of that decree is

done by the Court Bailiff. It is seen that Bailiff Report is on record and

nothing precluded Respondent No.2 to approach the Small Causes

Court for declaratory relief despite she very well knowing about the

subsistence of the aforesaid RAE Suit No. 47/78 of 2005. Knowledge of

Respondent No.2 is clearly gathered from her own Application made to

the Small Causes Court in the year 2007. Copy of which is appended

below Exhibit “H” at page No.84. Thus, it is seen that instead of filing

an appropriate civil proceedings on the ground that Respondent No.2

was an occupant for 25 years as claimed by her, she infact chose to file

a criminal complaint.


15.       I   have   duly   considered   her   Affidavit-in-Reply    dated

10.06.2010, her Additional Affidavit-in-Reply dated 16.06.2026 and



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her key points of arguments dated 28.08.2026. In view of the aforesaid

observations and findings, it is seen that the order dated 16.11.2009 is

passed by Magistrate with complete non-application of mind. The

order issuing process is primarily passed on the basis of the alleged act

of Accused No.9 namely Court Bailiff only. In that view, implication of

Petitioner – Trust and Trustees is completely unwarranted. In such

circumstances no incriminating material is either brought on record or

is attributable to the Petitioners before me.


16.       At the outset it is seen that the steps taken by the Court

Bailiff and documentation is all placed on record appended to the

Petition. I have perused the same. There is nothing incoherent or

wrong with the said documentation. All Bailiff forms are duly filed in

and the inventory is also complete. What is crucial is that the Bailiff

performed his duty as a “public servant” by following the due process

of law which is completely overlooked by the Magistrate while

granting order issuing process, especially, so when it emanates from a

civil action of execution of a decree. What is significant, is that there is

no attempt made by the Magistrate to verify and ascertain the veracity

of Respondent No.2’s case especially when the record shows that she

was fully aware of the eviction proceedings filed by the Petitioners

against the incumbent tenant of the subject room whose tenancy was

attorned to the Petitioner No.1 – Trust and in 2007 itself she had filed

a Notice of Motion to intervene in the Eviction Suit filed by the

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Petitioner No.1 - Trust. Even according to Respondent No.2’ case it is

averred by her that there was an oral understanding between the

erstwhile tenant of the room and herself but that is completely belied

by the attornment of tenancy by the erstwhile landlord and the rent

receipt annexed to the said Sale Deed which never reflected the name

of Respondent No.2. Nothing precluded the Respondent No.2 from

seeking declaratory relief from the appropriate Court qua her

substantive right and entitlement.


17.       It is clearly seen from the record that Respondent No.2 filed

a Notice of Motion in the Small Cause Court in 2007 alleging that she

was residing in Room No.1 which was wrongly referred to as Room

No.3 by Plaintiffs in the eviction suit. If it is Respondent No.2’s case

that there was an oral understanding with Vishnu Joglekar then

nothing prevented her from seeking declaration of her entitlement as a

sub-lettee with regard to the subject room. Thus the fact that she did

not take any steps itself shows that Respondent No.2 had no right

whatsoever in the subject premises. The lis therefore is purely civil in

nature.


18.       It is necessary to consider that Respondent No.2 is an

Advocate by profession and therefore ought to have been more

cautious about her right and entitlement qua the subject room rather

than filing a criminal complaint against a Court officer and roping in



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the Petitioner No.1 and its Trustees as accused persons in the

complaint in such above facts on the ground that some cash amount of

Rs.32,000 was lying in the room and it does not find mention in the

inventory. This is nothing but in my opinion a clear abuse of the due

process of law in invoking criminal action and pressuring the opponent

when the dispute is entirely civil and parties were already before the

Small Causes Court in appropriate proceedings.


19.       It is seen that the Bailiff’s Report prima facie shows the

signatures of all those who were present at the time of taking

inventory, prima facie reading the Bailiff's Report does not arouse any

suspicion whatsoever as contemplated by Respondent No.2. Therefore

her submission that one gas cylinder and Rs.32,000/- cash lying in the

room does not find mention in the inventory should be the reason for

granting order issuing process cannot be accepted on the face of

record. The Magistrate has not given due importance to the entire

material on record before passing the order dated 16.11.2009.


20.       In view of my aforesaid observations and findings the order

dated 16.11.2009 is not sustainable in law and is quashed and set

aside. Resultantly, the Petition No.1045 of 2010 is allowed in terms of

prayer clause “a”.

21.       Since, I am informed that the obstructionist proceedings are

at the stage of evidence before Small Causes Court, the same shall be



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                              proceeded with and determined in accordance with law on the basis of

                              evidence as well as evidence in rebuttal led by parties therein without

                              being influenced by the opinion expressed by this Court in the present

                              judgment and strictly in accordance with law.


                              22.       In view of this order, Interim Application No.2244 of 2026, if

                              so pending on record and file of this Petition, is accordingly disposed.


                              23.       Criminal Writ Petition is allowed and disposed.


                                                                         [ MILIND N. JADHAV, J. ]

       AjayDigitally signed
           by AJAY
AJAY       TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date:
           2026.09.17
           11:31:31 +0530




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