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
- Bombay Nursing Service (BNSS) Act — s. 528
- Code of Criminal Procedure, 1973 — s. 482
- Indian Penal Code — s. 120(b), 34, 380, 418, 420, 451, 504, 506, 506(II)
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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