Bombay High Court
Suresh Vinayak Kulkarni And Ors vs Inspector Of Police And Ors on 10 July, 2023
Bench: Nitin W. Sambre, R. N. Laddha
2023:BHC-AS:19285-DB
(9)-APL-898-21.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
signed by
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2023.07.13
18:21:17
CRIMINAL APPLICATION NO.898 OF 2021
+0530
Suresh Vinayak Kulkarni & Ors. ..Applicants
Versus
Inspector of Police, Nerul Police Station
Navi Mumbai, District Thane & Ors. ..Respondents
Mr. Prashant G. Karande, for the Applicants.
Mr. J. P. Yagnik, APP for the Respondent/State.
Mr. Shivaji Masal, for the Respondent No.2.
CORAM : NITIN W. SAMBRE &
R. N. LADDHA, JJ.
DATE : 10th JULY, 2023
P.C.
1. Heard.
2. Applicants are seeking quashing of the FIR being Crime
No.271 of 2021 registered on 30 th July, 2021 for an offence
punishable under Sections 443 and 453 of the IPC in which they are
already charge-sheeted.
3. The genesis of the offence is, based on the right claimed
by the respondent No.2, who claimed that he has a development
agreement with father-in-law of Applicant No.1. Applicant Nos.2
and 3 are the daughter and son-in-law of Applicant No.1 and it is
the case of the applicants that they have succeeded subject matter of
BGP. 1 of 4
(9)-APL-898-21.doc.
the property in the offence by virtue of the son-in-law of deceased
owner, namely Dwarkanath Ramchandra Kotnis.
4. The case of the prosecution against the applicants is that
Dwarkanath Ramchandra Kotnis died in the year 1995, however, he
entered into a development agreement on 12th May, 1994 in relation
to the immovable property located at Sector-17, Nerul, Navi
Mumbai. The agreement provides for the development to be carried
out by respondent No.2 and after such development, first and
second floor of the building was to be handed over to deceased
Dwarkanath Ramchandra Kotnis. It is the case of the respondent
No.2 that since death of the owner the applicants failed to execute
the title-deed in relation to the ground floor and land appurtenant
thereto on the front and rear side. A suit for specific performance
and injunction being RCS No.367 of 2014 came to be initiated
which is informed to be pending adjudication at the final stage. It is
claimed that during pendency of the aforesaid suit, the applicants
trespassed into the house on 29th July, 2021, thereby entering from
terrace of the adjoining building on the terrace of the developed
property and as such, committed offence in question.
5. The offence is made punishable under Sections 443 and
453 of the IPC i.e. lurking house trespass and punishment for
lurking house trespass or house breaking. Submissions of counsel
for the applicants are, from the investigation carried out as reflected
in the charge-sheet, satisfaction of ingredients of offence punishable
BGP. 2 of 4
(9)-APL-898-21.doc.
under Section 453 of IPC cannot be inferred as the applicants
cannot be said to have committed lurking house trespass as defined
under Section 443 of the IPC. So as to substantiate said contention,
our attention is invited to the observations made by the Civil Court
who has seized with the matter in relation to the grant of specific
performance wherein application Exh.5 for grant of temporary
injunction came to be allowed vide order dated 12 th April, 2018
passed by Civil Judge Senior Division, Thane and judgment and
order dated 29th February, 2020 passed by District Judge-10, Thane,
in Misc. Civil Appeal No.47 of 2019, so also, the order passed by
this Court in Writ Petition Stamp No.96119 of 2020 on 22 nd March,
2021.
6. The contentions are that the relationship between the
parties is not in dispute as is claimed by counsel for the applicants
from the very language used in the FIR and other material collected
during the investigation as reflected in the charge-sheet. He would
as such urge that for attracting provisions of Section 443 of IPC i.e.
lurking house trespass, it is necessary to satisfy that the complainant
should have right to exclude or eject the trespasser from the
building is in question. The fact remains that the case of the
complainant/respondent No.2 is in relation to the trespass carried
out by the applicants on the terrace of first and second floor. The
very development agreement, so also, the contents in the FIR and
investigation papers reflect that the respondent No.2 has no right to
evict the applicants from the first and second floor as the very
BGP. 3 of 4
(9)-APL-898-21.doc.
genesis of the case of the respondent No.2 is based on the
development agreement and such development agreement gives
right to the complainant only to the extent of ground floor. The
issue whether the respondent No.2/complainant has right on the
open space on the ground floor is an issue looked into by the
competent Court and same shall be adjudicated independently
without being influenced by the findings recorded herein-above.
Even if case of the prosecution as reflected in the FIR and charge-
sheet is appreciated, it cannot be said that the same satisfies the
very ingredients of Section 443 of the IPC as is discussed herein-
above.
7. In this view of the matter, in our opinion, the
prosecution of the applicants for offence punishable under Sections
443 and 453 of the IPC is not sustainable, as prima-facie it can be
inferred that no commission of offence as alleged can be inferred
from the contents of the FIR and investigation carried out.
8. The application as such stands allowed. The prosecution
initiated against the applicants vide FIR No.271 registered with
Nerul Police Station for the offence punishable under Sections 443
and 453 of the IPC is hereby quashed and set aside.
[R. N. LADDHA, J.] [NITIN W. SAMBRE, J.]
BGP. 4 of 4
