Authority: High Court of Judicature at Bombay, Criminal Appellate Jurisdiction

Order Date: 17 September 2026

Case Overview

  • Petitioners: Jaffer Suleman Musafirkhana Trust & Ors. (Trustees identified as Petitioners Nos. 1‑7).
  • Respondents: State of Maharashtra & Anr.; Ms. Asha Gachke (Respondent No. 2, advocate by profession).
  • Proceedings: Criminal Writ Petition No. 1045 of 2010 with Interim Application No. 2244 of 2026.
  • Challenged Order: Magistrate’s order dated 16 Nov 2009 in CC No. 197/SW/2009 (Metropolitan Magistrate, 11th Court, Kurla, Mumbai) issuing process against petitioners under IPC §§ 380, 418, 420, 451, 504, 506, 506(II), 34 and 120(b).
  • Background:
  • The Khare Sadan Building, Kurla, was acquired by the Trust on 15 Jan 2004 via a registered Sale Deed. Original ground‑floor tenants were Tara Joglekar (Room 3), Mr. Menon (Room 1) and Mrs. Tilekar (Room 2). Vishnu Joglekar was recorded as tenant of Room 3.
  • Respondent No. 2 claimed she had been sub‑letting Room 1 since 1982 from Vishnu Joglekar, but the Trust contended that Room 1 belonged to Mr. Menon and that no such sub‑let existed.
  • The Trust filed RAE Suit No. 47/78 of 2005 for eviction of Tara Joglekar (Room 3). The Small Causes Court passed an eviction decree on 24 Apr 2006, which was executed on 28 Feb 2007 by the Court Bailiff (Accused No. 9).
  • During execution, the Bailiff’s inventory omitted a gas cylinder and cash of Rs 32,000 allegedly present in Room 1. Respondent No. 2 filed a criminal complaint, leading to the magistrate’s process order on 16 Nov 2009.
  • Petitioners’ Contentions:
  • The dispute is purely civil concerning entitlement to possession of Room 1; the criminal process is unwarranted.
  • The Trust, as decree holder, was merely executing the Small Causes Court decree and had no criminal liability.
  • The magistrate did not apply mind to the bailiff’s report and failed to verify the factual basis of the complaint.
  • Respondent No. 2’s Contentions:
  • The petition is an attempt to invoke Section 482 Cr.P.C. to delay criminal proceedings.
  • She argued that the petitioners should first appear before the Trial Court and avail statutory remedies.
  • Cited Supreme Court and Madras High Court precedents (Satender Kumar Antil v. CBI, Krishnakumari v. State of Tamil Nadu, Sugesan Transport Pvt. Ltd. v. Asst. Commissioner of Police, Lala Jairam Das v. King‑Emperor).
  • Submitted affidavit‑in‑reply (dated 16 Jun 2026) and key points of argument (28 Aug 2026) asserting that petitioners were silent and that the criminal complaint is an abuse of process.
  • Court’s Observations:
  • The factual matrix shows a civil dispute over possession; the criminal complaint is an improper avenue.
  • The bailiff’s inventory and report are complete; there is no material linking the Trust or its trustees to the alleged omission of Rs 32,000 or the gas cylinder.
  • The magistrate’s order was passed without proper consideration of the bailiff’s documentation and therefore lacks application of mind.
  • The Small Causes Court decree (exhibit “K”) and the bailiff’s execution report (exhibit “G”) demonstrate that the Trust acted as a public servant following due process.
  • Respondent No. 2, being an advocate, should have pursued declaratory relief in the appropriate civil forum rather than resorting to criminal proceedings.
  • The ongoing civil proceedings before the Small Causes Court are at the evidence stage and will determine the substantive right to the premises.

Final Outcome

  • The order dated 16 Nov 2009 issuing criminal process is quashed and set aside.
  • Criminal Writ Petition No. 1045 of 2010 is allowed in terms of prayer clause “a”.
  • Interim Application No. 2244 of 2026 is disposed.
  • The civil proceedings in the Small Causes Court shall continue without influence from this judgment, to be decided on the basis of evidence.

Topics: Criminal Procedure, Civil Property Dispute